Bueno v. Firgeleski

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LUZ E. BUENO ET AL. v. MICHAEL
FIRGELESKI ET AL.
(AC 39074)
Lavine, Elgo and Harper, Js.
Syllabus
The plaintiff landowners sought a judgment declaring void and unenforce-
able a restrictive covenant contained in a deed to certain of their real
property to enable them to subdivide the property and to sell a portion
of it for development. The plaintiffs’ property was originally part of
thirty acres of farmland in Darien that included a homestead. The defen-
dants own lots that are adjacent to the plaintiffs’ property and were
created from a portion of the farmland. Certain of the defendants own
land in the B subdivision, and other defendants own land in the W
subdivision. In 1934, the beneficiaries of a life estate in the farmland
initiated a partition action seeking permission to sell the land, due to
changing economic and societal circumstances. Thereafter, M acquired
approximately two acres of the farmland that included the homestead.
In 1941, the Superior Court ordered a committee to convey to V approxi-
mately one and one-half acres of the farmland that were adjacent to
M’s property. The committee deed conveying the property contained
the subject restrictive covenant, which, inter alia, permitted only one
dwelling on the premises and set certain building setback requirements.
M and V subsequently conveyed their properties to S and his wife, who,
in turn, sold a portion of the property they had acquired from V to the
plaintiffs, and that property was subject to the restrictive covenant. S
and his wife then sold the remainder of their property, including a
triangularly shaped area of land, and the deed of conveyance stated that
the property was subject to the restrictive covenant insofar as it affected
the premises. That property is now the W subdivision, which is com-
prised of three lots with single-family houses on them. Lot 2 contains
the original homestead and lot 3, now owned by two of the defendants,
includes the triangularly shaped area. The deed to lot 3 stated that the
premises were subject to the effect, if any, of the restrictive covenant.
The remainder of the original farmland is now the B subdivision, which
is comprised of thirty-one lots, four of which are owned by the other
defendants. None of the deeds to the lots in the B subdivision contained
the restrictive covenant. After a trial to the court, the trial court rendered
judgment in favor of the plaintiffs, declaring that the relevant portions
of the restrictive covenant were unenforceable by the defendants due
primarily to a significant and permanent change of circumstances that
frustrated the purpose for creating the restriction. On the defendants’
appeal to this court, held:
1. The defendants could not prevail on their claim that three of the trial
court’s factual findings were not supported by the evidence, as those
findings were not clearly erroneous and the defendants failed to demon-
strate how those findings affected the court’s ultimate, and dispositive,
conclusion that the restriction was unenforceable due to a permanent
and substantial change in circumstances:
a. The trial court properly found that lot 3 violated the restrictive cove-
nant in its chain of title; when the W subdivision was created and houses
were constructed on lots 1 and 3 in addition to the preexisting homestead
on lot 2, the restriction that limited the number of dwellings on the
entire premises to one was violated, the house on lot 3 violated the
restriction that no building was to be erected within twenty-five feet of
the southerly boundary of the premises, and even if the court’s finding
was erroneous, the defendants were not harmed by it, as it was not
the basis of the court’s conclusion that the restrictive covenant was
unenforceable due to a significant change in circumstances.
b. The trial court properly found that the homestead was the intended
beneficiary of the restrictive covenant; when viewed in the context of
the historical development of the original farmland property, including
the W and B subdivisions, and the language, or lack thereof, contained
in the relevant deeds, the restrictive covenant clearly was intended to
protect the homestead from the suburban development and encroach-
ment taking place in Darien at the time the committee conveyed the
approximately one and one-half acres of the farmland to V.
c. The trial court’s finding that the dominant estate did not include the
B subdivision was supported by the evidence; the restrictive covenant
was intended to benefit the homestead and was not contained in any
of the deeds to the lots in the B subdivision, and if the grantor had
intended to benefit the lots in the B subdivision by restricting develop-
ment, it could fairly be assumed that the grantor would have similarly
restricted development there.
2. The defendants could not prevail on their claim that the court erred by
going beyond the four corners of the relevant deeds in interpreting the
‘‘effect, if any’’ language in the chain of title to lot 3: the descriptions
of the restrictive covenant in the deeds conveying all or a portion of
the land belonging to the parties were not consistent, and, given that
ambiguity, it was not improper for the court to look beyond the four
corners of the deeds to determine the intent of the parties to the various
deeds; moreover, contrary to the defendants’ assertion, the trial court
did not err in concluding that the entire W subdivision and not just the
triangularly shaped area of land was subject to the restrictive covenant,
as the relevant deed did not set off and describe a triangularly shaped
area of land that by itself was subject to the restriction.
3. This court found unavailing the defendants’ claim that the trial court
misapplied the facts of the present case to the tests set forth in Shippan
Point Assn., Inc. v. McManus (34 Conn. App. 209), and Fidelity Title &
Trust Co. v. Lomas & Nettleton Co. (125 Conn. 373), which was based on
their claim that the court improperly focused its change of circumstances
analysis on the surrounding area rather than on the property that was
subject to the restrictive covenant, and erred in finding that the home-
stead was the intended beneficiary of the restrictive covenant rather
than the B subdivision; whether the homestead or the B subdivision
was the intended beneficiary of the restrictive covenant had no effect
on the outcome of the case, and the trial court properly determined
that the restrictive covenant was not enforceable by the defendants
because its purpose had been frustrated by a substantial and permanent
change in circumstances, it had been abandoned by lack of enforcement
and it did not benefit any of the parties’ properties.
Argued October 4, 2017—officially released March 27, 2018
Procedural History
Action for a declaratory judgment declaring void and
unenforceable a restrictive covenant in the deed to cer-
tain of the plaintiffs’ real property, brought to the Supe-
rior Court in the judicial district of Stamford-Norwalk
and tried to the court, Hon. A. William Mottolese, judge
trial referee; judgment for the plaintiffs, from which the
defendants appealed to this court. Affirmed.
Colin B. Connor, with whom was Robert D. Russo
III, for the appellants (defendants).
Edward R. den Dooven, self-represented, with whom
was Luz Elena Bueno, self-represented, the appellees
(plaintiffs).
Opinion
LAVINE, J. ‘‘A covenant that is a servitude ‘runs with
the land’.’’ 1 Restatement (Third), Property, Servitudes
§ 1.3 (1), p. 23 (2000). ‘‘When a change has taken place
since the creation of a servitude that makes it impossi-
ble as a practical matter to accomplish the purpose for
which the servitude was created, a court may modify
the servitude to permit the purpose to be accomplished.
If modification is not practicable, or would not be effec-
tive, a court may terminate the servitude.’’ 2
Restatement (Third), Property, Servitudes § 7.10 (1), p.
394 (2000).1
This declaratory judgment action concerns the viabil-
ity of a restrictive covenant (restriction) contained in
a 1941 committee deed conveying 1.544 acres of a thirty
acre farm in Darien that was once owned by Wilbur
N. Waterbury (Waterbury land). The plaintiffs, Luz E.
Bueno and Edward R. den Dooven,2 own 1.38 acres of
the Waterbury land.3 The defendants, Michael Firgel-
eski, Allison Firgeleski, Pole M. Chan, Jessica M. Chan,
Richard B. Myers, Margaret Q. Myers, Scott J. Cronin,
and Eileen M. Cronin (collectively, Briar Brae defen-
dants), and Kenneth S. Martin and Rachel P. Martin
(Martins), own lots that were created from a portion
of the remainder of the thirty acres of the Waterbury
land and are adjacent to the plaintiffs’ property. The
plaintiffs sought a judgment declaring the restriction
void and unenforceable to permit the sale of a portion
of their property.4 In its judgment, the court declared
unenforceable the portion of the restriction that limits
the plaintiffs’ use of their property to one dwelling
house, prohibits the erection of any building within
twenty-five feet of the southern boundary, and requires
approval of the grantor before erecting a structure on
the property.
The defendants appealed, claiming that three of the
court’s factual findings are erroneous in that they are
not supported by the evidence. With respect to the
court’s legal conclusions, the defendants claim that the
court (1) improperly looked beyond the four corners
of the deeds and (2) misapplied the facts of the present
case to Fidelity Title & Trust Co. v. Lomas & Nettleton
Co., 125 Conn. 373, 5 A.2d 700 (1939) (restriction’s pur-
pose frustrated) and Shippan Point Assn., Inc. v.
McManus, 34 Conn. App. 209, 215, 641 A.2d 144 (same),
cert. denied, 229 Conn. 923, 642 A.2d 1215 (1994).5 We
affirm the judgment of the trial court.
Before turning to our legal analysis, we describe in
detail the history of the many land transactions that
underlie the present appeal. In the early 1930s, the
estate of Wilbur N. Waterbury included a thirty acre
farm on the eastern side of Hoyt Street. Beginning with
a 1934 partition action that was followed years later by
certain land transactions, the character of the Water-
bury land transformed from a farm to a suburban subdi-
vision. A 1941 committee deed conveying 1.544 acres
of the Waterbury land contains the restriction at the
heart of the present matter. The resolution of this appeal
turns on our construction of that restriction given the
circumstances surrounding its creation.6 The restriction
or a variation of it is contained in the deeds to lots
owned by the plaintiffs and the Martins, but it is not
contained in the deeds to the lots owned by the Briar
Brae defendants.
Prior to the events giving rise to this appeal, three
of Waterbury’s nieces were the beneficiaries of a life
estate in the Waterbury land.7 In 1934, due to changing
economic and societal circumstances, the Waterbury
nieces initiated a partition action seeking permission
to sell the Waterbury land in whole or in part. In 1937,
Mary Alice Vaughan acquired 2.11 acres of the Water-
bury land, which included the Waterbury homestead,
consisting of a single-family home and outbuildings.
See appendix to this opinion.
In 1941, the Superior Court ordered Arthur I. Cran-
dall, committee,8 to convey 1.544 acres of the Waterbury
land to Clyde E. Vaughan (Vaughan). Crandall’s deed to
Vaughan contains the subject restriction. See footnote
6 of this opinion. Vaughan’s land was adjacent to the
land owned by Mary Alice Vaughan on the south and
on the east; the area of land on the east was triangular
in shape. See appendix to this opinion. Together the
Vaughans9 owned 3.654 acres of adjoining land that
fronted on Hoyt Street. The Waterbury nieces retained
the remainder of the Waterbury land that surrounded
the Vaughans’ properties.
In 1953, Mary Alice Vaughan and Vaughan, individu-
ally, conveyed their respective properties to Robert G.
Shepherd and Helen D. Shepherd (Shepherds). The
deed from Mary Alice Vaughan conveying her property
did not contain the restriction, but the deed conveying
Vaughan’s property to the Shepherds contained the
restriction. Specifically the deed from Vaughan stated,
‘‘[s]aid premises are subject to . . . restrictive cove-
nants and agreements of record . . . .’’ In 1954, the
Shepherds conveyed a portion of the land they acquired
from Vaughan, specifically 1.38 acres, to Robert W. E.
Anderson and Ingeborg Smith Anderson (Andersons).
The Shepherds’ deed of conveyance contained the
restriction and stated, ‘‘[b]eing a portion of the premises
conveyed to the said grantors by’’ Vaughan in 1953.
The Shepherds did not convey to the Andersons the
triangularly shaped area of land that lay to the east of
the 2.11 acres once owned by Mary Alice Vaughan.
In 1956, the Shepherds conveyed the remainder of
their land, including the triangularly shaped area, to
Richard L. Webb and Nina H. Webb (Webbs). The deed
to the Webbs subjected their property to the restriction
‘‘insofar as they affect the above described premises
. . . .’’ In 1971, the Webbs created a three lot subdivi-
sion by dividing the land they had acquired from the
Shepherds, i.e., lot 1, lot 2, and lot 3 (Webb subdivi-
sion).10 Lot 2 contained the Waterbury homestead. The
Martins now own lot 3, which includes a portion of the
triangularly shaped area of land that Crandall deeded
to Vaughan in 1941. The Martins’ deed states that the
premises are subject to ‘‘[t]he effect, if any, of restric-
tive covenants and agreements contained in’’ the deed
to Vaughan. (Emphasis added.) Lot 3 is adjacent to the
plaintiffs’ lot on the north.
In 2008, the plaintiffs acquired 1.38 acres of land from
the Andersons. The land was once part of the 1.544
acres deeded to Vaughan in 1941, less the triangularly
shaped piece of land. The plaintiffs’ deed contains the
restriction. See footnote 6 of this opinion.
In 1954, the remaining thirty acres of Waterbury land,
land that had not been owned by either of the Vaughans,
was acquired by Arthur Olsen Associates, Inc. The deed
conveying the remaining Waterbury land does not con-
tain the restriction. The Darien Planning and Zoning
Commission thereafter approved a thirty-one lot subdi-
vision of single-family homes to be built on the land
acquired by Arthur Olsen Associates, Inc. The subdivi-
sion is known as Briar Brae, and none of the deeds to
the lots in the subdivision contains the restriction. The
lots owned by the Briar Brae defendants are adjacent
to the land once owned by Mary Alice Vaughan and
Vaughan on the east and south.11
The plaintiffs commenced the present action in Sep-
tember, 2013.12 Pursuant to their substitute complaint,
the plaintiffs sought a declaratory judgment that the
restriction in their deed is void and unenforceable. Such
a declaration would enable them to subdivide their land
into two lots: one for their own home and one for
development. The plaintiffs alleged several reasons why
the restriction should be declared void and unenforce-
able: (1) the 1941 deed violated the Superior Court’s
order to the committee,13 (2) the circumstances of the
neighborhood surrounding the Waterbury land have
changed significantly, (3) the restriction has been aban-
doned, (4) the restriction benefits no one, (4) the restric-
tion is unfair to the plaintiffs as they cannot reach an
agreement with the beneficiaries of the restriction, (5)
the restriction is barred by laches, and (6) the restriction
has been extinguished by the Marketable Title Act, Gen-
eral Statutes § 47-33b et seq.
The court tried the matter in the fall of 2015. Numer-
ous maps and deeds were placed into evidence, and
the court viewed the thirty acres of Waterbury land in
the company of the parties’ counsel. The court issued
its memorandum of decision on January 20, 2016.14 We
now examine the court’s adjudication of the plain-
tiffs’ claims.
The court first considered the beneficiary of the
restriction. It found that the restriction first appeared
in the deeds of the Martins’ predecessors in title in 1956
when the Shepherds conveyed the land formerly owned
by Mary Alice Vaughan and the triangularly shaped area
of land formerly owned by Vaughan to the Webbs. The
deed from the Shepherds to the Webbs stated in part:
‘‘Said premises are conveyed subject to restrictive cove-
nants and agreements as set forth in a deed given by
. . . Crandall . . . to . . . Vaughan . . . insofar as
they affect the above described premises . . . .’’
(Emphasis added.)
The court also found that in 1971, when the Webbs
subdivided the land into three building lots, they acted
in disregard of the restriction. If the restriction had
been applied before the Webb subdivision was created,
dwellings would have been limited to the Waterbury
homestead on lot 2. Moreover, when lot 2 was created,
its southerly boundary rendered the Waterbury home-
stead in violation of the twenty-five foot setback
requirement because the setback created by the subdivi-
sion was only fifteen feet.
When the Martins took title to lot 3 in 2006, schedule
A attached to their deed stated in part: ‘‘Said premises
are subject to . . . [t]he effect, if any, of restrictive
covenants and agreements contained in a deed from
. . . Crandall . . . to Vaughan . . . .’’ (Emphasis
added.) The court found it ‘‘apparent that the uncer-
tainty concerning the applicability of the restriction
. . . manifest[ed] itself by the use of the words ‘effect,
if any.’ ’’ None of the deeds to the lots owned by the Briar
Brae defendants contains the restriction. The plaintiffs’
lot, therefore, is the only one of thirty-five lots created
from the thirty acres of the Waterbury land that is
expressly made subject to the restriction without the
qualifying words, ‘‘effect, if any.’’
The court’s memorandum of decision demonstrates
its familiarity with the applicable law. Generally,
‘‘restrictive covenants fall into three classes: (1) mutual
covenants in deeds exchanged by adjoining landown-
ers; (2) uniform covenants contained in deeds executed
by the owner of property who is dividing his property
into building lots under a general development scheme;
and (3) covenants exacted by a grantor from his grantee
presumptively or actually for the benefit and protection
of his adjoining land which he retains. Stamford v.
Vuono, 108 Conn. 359, 364, 143 A. 245 (1928). With
respect to the third class of covenants, the original
grantor, who is the owner of the property benefited,
and his assigns may enforce [the covenant] against sub-
sequent purchasers of the property burdened. If the
restrictive covenant is for the benefit of the remaining
land of the grantor, it is an easement running with the
land and may be enforced by a subsequent purchaser
of the remaining land against the prior grantee and his
successors in title . . . .’’ (Internal quotation marks
omitted.) Grady v. Schmitz, 16 Conn. App. 292, 296,
547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d
755 (1988).
The court noted that ‘‘[w]here the owner of two adja-
cent parcels conveys one with a restrictive covenant
and retains the other, whether the grantor’s successor
in title can enforce, or release, the covenant depends
on whether [the covenant] was made for the benefit of
the land retained by the grantor in the deed containing
the covenant, and the answer to that question is to be
sought in the intention of the parties to the covenant
as expressed therein, read in the light of the circum-
stances attending the transaction and the object of the
grant. Bauby v. Krasow, 107 Conn. 109, 112–13, 139 A.
508 (1927).’’ (Emphasis added; internal quotation marks
omitted.) Marion Road Assn. v. Harlow, 1 Conn. App.
329, 335, 472 A.2d 785 (1984). ‘‘The meaning and effect
of the reservation are to be determined, not by the
actual intent of the parties, but by the intent expressed
in the deed, considering all its relevant provisions and
reading it in the light of the surrounding circum-
stances . . . .’’ (Emphasis added; internal quotation
marks omitted.) Id., 332.
The court found that, at the time the restriction was
created, the only dwelling on the Waterbury land was
the Waterbury homestead. Given the circumstances
under which the Waterbury land was developed, the
court inferred that the grantor intended the restriction
to benefit only that portion of his remaining land con-
taining the Waterbury homestead and its service build-
ings. The court buttressed its conclusion with the fact
that the restriction is not contained in the deeds to any
of the lots in Briar Brae and that lot 3 was conveyed
subject only to the ‘‘effect, if any’’ of the restriction. The
court concluded, therefore, that the Waterbury estate
manifested an intent not to restrict the remainder of the
Waterbury land, stating that the indicia of the grantor’s
intent not to burden all of the Waterbury land out-
weighed any other evidence, including the ambivalent
deed references. The court reasoned that the language
‘‘effect, if any’’ and similar words was consistent with
the grantor’s intent. Relying on Marion Road Assn. v.
Harlow, supra, 1 Conn. App. 335, the court found that
the restriction in this case was intended to benefit the
grantor’s retained land and could have no purpose other
than to protect the grantor’s homestead.
In considering the plaintiffs’ claim that the circum-
stances of the Waterbury land have changed so signifi-
cantly since the restriction was created that it is no
longer enforceable, the court assumed given the lan-
guage of the restriction, i.e., ‘‘[i]t shall run with the land
hereby conveyed and be binding upon the grantee, his
heirs assigns forever,’’ that the restriction was appurte-
nant to the land conveyed to the plaintiffs. Where a
restrictive covenant contains words of succession, i.e.,
heirs and assigns, a presumption is created that the
parties intended the restrictive covenant to run with
the land. See Kelly v. Ivler, 187 Conn. 31, 39–40, 450
A.2d 817 (1982).
In analyzing the evidence, the court was cognizant
of the rule that ‘‘[w]here a party seeks by way of affirma-
tive relief to have a restrictive covenant modified or
nullified on the basis of a change of circumstances . . .
he must make it manifest that its purpose has been
permanently frustrated, and that the change is so great
as to defeat the object of the covenant.’’ Grady v.
Schmitz, supra, 16 Conn. App. 301. The relief ‘‘should
be granted with caution and only when the motivating
considerations are not only ample but so settled and
lasting that it is manifest that the purpose of the original
restriction has been permanently frustrated. The
changes must be so great as clearly to neutralize the
benefits of the restrictions to the point of defeating the
object and purpose of the covenant.’’ (Internal quota-
tion marks omitted.) Fidelity Title & Trust Co. v.
Lomas & Nettleton Co., supra, 125 Conn. 376–77. The
change of circumstances may not be transient, and they
must be drastic and permanent. Id. 378. Abandonment
of a right requires the ‘‘voluntary and intentional renun-
ciation [of a right] but the intent may be inferred as
a fact from the surrounding circumstances.’’ (Internal
quotation marks omitted.) Blum v. Lisbon Leasing
Corp., 173 Conn. 175, 182, 377 A.2d 280 (1977).
In deciding whether there has been a change of cir-
cumstances sufficient to warrant nullification of the
restriction, the court compared the circumstances of
the Waterbury land as they were in 1941 when the
restriction was created with present circumstances.
The court found that the plaintiffs successfully had
proved that seven years before the restriction was cre-
ated, the land Crandall conveyed to Vaughan was part
of a thirty acre farm on undeveloped land. In 1934, the
Waterbury nieces commenced a partition action that
resulted in Crandall’s appointment to sell the Waterbury
land.15 From those facts, the court inferred that in 1934,
the character of the neighborhood in the vicinity of
the Waterbury land was changing from agricultural to
suburban. Suburban housing had begun to appear in
the section of Darien where the Waterbury land was
located, but the Waterbury land was not yet part of
the suburban transition. In 1937, only one residential
structure with outbuildings existed on the Waterbury
land. None of the remaining land was developed until
1954 when Arthur Olson Associates, Inc., received
approval from the Darien Planning and Zoning Commis-
sion to create the thirty-one lot Briar Brae subdivision.
The court also found that lot 3 is approximately 0.75
acres in size, which is approximately the size of the lot
the plaintiffs would like to ‘‘spin off’’ from their land.
Briar Brae is fully developed in predominantly one-half
acre lots, each of which contains a single-family home
that has existed for many years. By their very nature
and purpose, the homes are intended to remain perma-
nently in their present locations. The lots owned by the
plaintiffs, the Martins and the Cronins front on Hoyt
Street, also known as Route 106, which is an access
road to the Merritt Parkway.
The court further reasoned that if the restriction runs
with the land, and, if arguendo, it was intended to
benefit Briar Brae, it falls within the class of covenants
known as the retained land theory. See Shippan Point
Assn., Inc. v. McManus, supra, 34 Conn. App. 213
(restrictions imposed by grantee for benefit of adjoining
land grantor retained). The court assumed for purposes
of its analysis that the restriction runs with the land.
The court applied the Fidelity Title & Trust Co. change
of circumstances test to its factual findings and con-
cluded that the plaintiffs had ‘‘amply satisfied’’ the
change of circumstances test. The court found manifest
that the purpose of the restriction has been frustrated
permanently as the very land that it was intended to
benefit, Briar Brae, had itself been subdivided into
numerous building lots each of which is free of any
such restriction and approximately the size of the lot
that the plaintiffs seek to create.
Moreover, the court found that lot 3, which is nomi-
nally similarly restricted as the plaintiffs’ land, has been
in flagrant violation of the restriction for many years.
The court noted that repeated violations of a restriction
without effective action to enforce it constitute grounds
for nullification of the restriction. See Cappo v. Suda,
126 Conn. App. 1, 9, 10 A.3d 560 (2011) (court obligated
to enforce restriction unless defendant can show
enforcement inequitable). To establish abandonment of
an easement by the acts of the owner of the dominant
tract, one must prove that the owner’s acts are ‘‘of so
decisive and conclusive a character as to indicate and
prove his intent to abandon the easement.’’16 (Internal
quotation marks omitted.) American Brass Co. v. Serra,
104 Conn. 139, 148, 132 A. 565 (1926). In addition, the
owner must act voluntarily. Id. The court found that if
the restriction requiring approval to build runs with
the land, the right to enforce the restriction had been
abandoned over a period of seventy-four years by the
failure of anyone to exercise it with respect to any of
the thirty-five lots in the Waterbury land, except the
plaintiffs’ lot. In finding that the restriction had been
abandoned by failure to enforce it, the court compared
the facts of the present case with Shippan Point Assn.,
Inc., in which twelve of twenty-five lots comprising
the dominant estate in a development contravened a
restrictive covenant. In the present case, thirty-four of
thirty-five lots contravene the restriction.
The court found that lot 3 is the southern portion of
the land that the Shepherds conveyed to the Webbs and
that the deed conveyed the entire parcel subject to the
restriction.17 If the parcel was subject to the restriction,
development of the parcel was limited to the Waterbury
homestead. Sometime after 1956, when houses were
constructed on lots 1 and 3 of the Webb subdivision,
that portion of the restriction that limited the number
of dwelling houses to one was violated. When a house
was built on lot 3, that portion of the restriction that
prohibits the erection of a building within twenty-five
feet of the southern boundary applied not to the prop-
erty as a three lot subdivision, but to the land as a single
parcel. The court concluded that when more than one
dwelling was constructed on the Webbs’ land, the pur-
pose of the twenty-five foot setback became meaning-
less not only as to the Webb subdivision, but also as
to the only property that could possibly benefit from
it, i.e., the plaintiffs’ property, because it adjoins the
Webb subdivision on the south and the plaintiffs seek
to avoid the restriction.
The court further found that the plaintiffs’ property
itself is in violation of the restriction. In 1959, a two
vehicle garage was constructed on the land without the
grantor having approved the plan. In 2004, the main
house was expanded by more than 2500 square feet
and a shed was constructed eighteen feet from the
southern border. Neither improvement was approved
by the grantor. A perimeter fence also was added to
the premises without approval.
On the basis of the foregoing, the court declared so
much of the restriction that limits the plaintiffs’ lot
to one dwelling house, prohibits the erection of any
building within twenty-five feet of the southern border
of the plaintiffs’ lot, or requires grantor approval of
structures on the plaintiffs’ lot unenforceable by the
defendants. The defendants filed a motion for reargu-
ment, which the court denied.18 The defendants
appealed.
On appeal, the defendants claim that in declaring
certain portions of the restriction unenforceable, the
court found three facts that are not supported by the
evidence and also committed legal error by going
beyond the four corners of the deeds and misapplying
the tests enunciated in Fidelity Title & Trust Co. and
Shippan Point Assn., Inc. In response, the plaintiffs
repeatedly noted that the trial court correctly declared
portions of the restriction void and unenforceable due
to a significant and permanent change of circumstances
that frustrate the purpose of the restriction and that the
defendants are not benefited by the servitude created
by the restriction. We agree with the plaintiffs.
In the final analysis, the resolution of this appeal
turns on the construction of the restriction in the 1941
committee deed to Vaughan and subsequent deeds to
the land formerly owned by Vaughan and the circum-
stances surrounding its creation. ‘‘The principles gov-
erning the construction of instruments of conveyance
are well established. In construing a deed, a court must
consider the language and terms of the instrument as
a whole. . . . Our basic rule of construction is that
recognition will be given to the expressed intention of
the parties to a deed or other conveyance, and that it
shall, if possible, be so construed as to effectuate the
intent of the parties. . . . In arriving at the intent
expressed . . . in the language used, however, it is
always admissible to consider the situation of the par-
ties and the circumstances connected with the transac-
tion, and every part of the writing should be considered
with the help of that evidence. . . . The construction
of a deed in order to ascertain the intent expressed
in the deed presents a question of law and requires
consideration of all its relevant provisions in light of
the surrounding circumstances.’’ (Emphasis altered;
internal quotation marks omitted.) Bolan v. Avalon
Farms Property Owners Assn., Inc., 250 Conn. 135,
140–41, 735 A.2d 798 (1999).
I
FACTUAL CLAIMS
The defendants claim that three of the court’s interre-
lated factual findings are erroneous because there is
no evidence to support the findings (1) that lot 3 violates
the restriction, (2) that the Waterbury homestead was
the intended beneficiary of the restriction, and (3) that
the dominant estate does not include the Briar Brae
subdivision. We disagree.
We review the trial court’s findings of fact by the
clearly erroneous standard. Valley National Bank v.
Marcano, 174 Conn. App. 206, 217, 166 A.3d 80 (2017).
‘‘[W]e will upset a factual determination of the trial
court only if it is clearly erroneous. The trial court’s
findings are binding upon this court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the records as a whole. . . . We cannot retry
the facts or pass on the credibility of the witnesses. A
finding is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Surrells v. Belinkie, 95 Conn.
App. 764, 767, 898 A.2d 232 (2006).
On the basis of our review of the record, the court’s
memorandum of decision, and the briefs of the parties,
we conclude that the court’s factual findings are not
clearly erroneous, and we are not left with a firm convic-
tion that a mistake has been made. Moreover, even if
we were to assume that the three findings are clearly
erroneous, the defendants have not demonstrated how
those findings affected the court’s ultimate, and disposi-
tive, conclusion that the restriction is unenforceable
due to a permanent and substantial change in circum-
stances. For these reasons, the defendants cannot pre-
vail on their claim that the court’s findings are not
supported by the evidence.
A
The defendants claim that the court’s finding that
lot 3 violates the restriction is not supported by the
evidence. We disagree.
The court found that the restriction in the deeds to
the Martins’ predecessors in title first appeared in 1956
when the Shepherds conveyed their property to the
Webbs. The deed from the Shepherds to the Webbs
states in part: ‘‘All that certain piece . . . of land,
together with the buildings and improvements thereon
. . . containing in area 2.274 acres . . . and bounded
. . . as follows: Northerly 293.48 feet . . . Easterly
317.17 feet . . . Southerly 251.56 feet . . . Westerly
385.27 feet . . . . The major portion of said premises
is shown and delineated on a certain map entitled Map
Showing Property to be conveyed to Mary Alice
Vaughan . . . 1937 . . . and the Easterly portion of
said premises is . . . shown . . . on a certain map
entitled, Map of Parcel No. 5 . . . . Said premises are
conveyed subject to restrictive covenants and
agreements as set forth in a deed given by . . . Cran-
dall . . . to . . . Vaughan . . . insofar as they affect
the above described premises . . . .’’ (Emphasis
added; internal quotation marks omitted.) The plain
language of the deeds makes clear that all of the land
being conveyed, i.e., ‘‘said premises,’’ is subject to the
restriction insofar as it may be affected. When the
Martins took title to lot 3 in 2006, their deed contained
the following language: ‘‘Said premises are subject to
. . . [t]he effect, if any, of restrictive covenants and
agreements contained in a deed from . . . Crandall
. . . to . . . Vaughan . . . .’’ (Emphasis added.) The
applicable restrictions are that ‘‘said premises shall be
used for private residential purposes only, and shall be
limited to the erection thereon of one dwelling house
and accessory buildings . . . and no building shall be
erected . . . within twenty-five . . . feet of the South-
erly line thereof . . . .’’
The court found that when the Webbs subdivided the
land into three lots, they did so in disregard of the
one dwelling house and setback restrictions. The court
explained that the restriction limited the number of
dwellings on the premises to one. At the time the Webbs
purchased the land, one dwelling, the Waterbury home-
stead, existed on the premises. The construction of
houses on lot 1 and lot 3 violated the restriction that
limited the number of dwellings to one. When a dwelling
was erected on lot 3 of the Webb subdivision, it violated
the restriction that no building shall be erected within
twenty-five feet of the southerly boundary of the prem-
ises. The restriction appears in the chain of title to lot
3 in the deed from Vaughan to the Shepherds and in
the deed from the Shepherds to the Webbs and in the
deed to the Martins. The court found that the Webbs
violated the restriction when they constructed houses
on each lot of their subdivision, including lot 3. We
conclude, therefore, that the court’s finding that lot 3
violates the restriction is not clearly erroneous.
Moreover, the defendants have failed to persuade us
that they have been harmed by the finding. An appellant
bears the burden of demonstrating that a court’s errone-
ous finding was harmful because it likely affected the
result. See Sander v. Sander, 96 Conn. App. 102, 118,
899 A.2d 670 (2006). Even if we assume that the court’s
finding that lot 3 violates the restriction is not supported
by the evidence, that error, if any, is harmless as it is
not the basis of the court’s ultimate conclusion that
the restriction was unenforceable due to a permanent,
substantial change in circumstances. The finding that
lot 3 violates the restriction is but one part of the court’s
analysis of whether the restriction should be declared
void and unenforceable. See 73-75 Main Avenue, LLC
v. PP Door Enterprise, Inc., 120 Conn. App. 150, 162,
991 A.2d 650 (2010) (court did not base finding on single
fact). As the plaintiffs repeatedly point out, the primary
reason the court concluded that the restriction was
unenforceable was due to a significant change of cir-
cumstances.
B
The defendants claim that the court’s finding that the
Waterbury homestead was the intended beneficiary of
the restriction is clearly erroneous. We do not agree.
‘‘[L]anguage in a deed that purports to create a restric-
tive covenant must be construed in light of the circum-
stances attending and surrounding the transaction.
. . . The meaning and effect of the reservation are to
be determined, not by the actual intent of the parties,
but by the intent expressed in the deed, considering all
its relevant provisions and reading it in light of the
surrounding circumstances . . . . The primary rule
of interpretation of such [restrictive] covenants is to
gather the intention of the parties from their words, by
reading, not simply a single clause of the agreement
but the entire context, and, where the meaning is
doubtful, by considering such surrounding circum-
stances as they are presumed to have considered when
their minds met.’’ (Citations omitted; emphasis altered;
internal quotation marks omitted.) Wykeham Rise, LLC
v. Federer, 305 Conn. 448, 480–81, 52 A.3d 702 (2012)
(Vertefeuille, J., concurring.)
‘‘[T]he law is clear that the description in the deed,
if clear and unambiguous, must be given effect. In such
a case, there is no room for construction. The inquiry
is not the intent of the parties but the intent which is
expressed in the deed. . . . Where the deed is ambigu-
ous, however, the intention of the parties is a decisive
question of fact. . . . In ascertaining the intention of
the parties, it [is] proper for the trial court to consider
the surrounding circumstances.’’ (Emphasis added;
internal quotation marks omitted.) Har v. Boreiko, 118
Conn. App. 787, 795–96, 986 A.2d 1072 (2010). ‘‘Where
a deed is ambiguous the intention of the parties is a
decisive question of fact. . . . In case of doubt, the
grant will be taken most strongly against the grantor.’’
(Citations omitted; internal quotation marks omitted.)
Faiola v. Faiola, 156 Conn. 12, 18, 238 A.2d 405 (1968).
‘‘[E]vents too distantly removed in time from the orig-
inal [developer’s] conveyances to reflect [the develop-
er’s] intent one way or another are not relevant . . .
although they would bear on the equitable issue of
enforceability of the covenants due to changed circum-
stances.’’ (Emphasis in original; internal quotation
marks omitted.) Shippan Point Assn., Inc. v. McManus,
supra, 34 Conn. App. 214, quoting Contegni v. Payne,
18 Conn. App. 47, 55, 557 A.2d 122, cert. denied, 211
Conn. 806, 559 A.2d 1140 (1989).
The 1941 committee deed to Vaughan states: ‘‘This
deed is given by the grantor and accepted by the grantee
upon the following restrictive covenants and
agreements, which shall run with the land hereby con-
veyed and be binding upon the grantee, his heirs and
assigns forever . . . .’’ The court, being familiar with
the classes of restrictive covenants, unsurprisingly
determined that the restriction falls into the category
of one exacted by a grantor from his grantee ‘‘ ‘presump-
tively or actually for the benefit and protection of his
adjoining land which he retains,’ ’’ citing Stamford v.
Vuono, supra, 108 Conn. 364. If the restriction is for
the benefit of the remaining land of the grantor, it runs
with the land and may be enforced by a subsequent
purchaser of the remaining land against the grantee and
his or her successors in title. Id., 365; see also Grady
v. Schmitz, supra, 16 Conn. App. 296.
The court searched the defendants’ posttrial briefs
to identify a legal theory under which they claimed to
enjoy the right to enforce the restriction. In their post-
trial brief, the defendants asserted that they may
enforce the restriction, ‘‘as owners of the benefitted
remaining land, against the [p]laintiffs upon the equita-
ble principle that prevents one having knowledge of
the just rights of others from defeating those rights.’’19
Despite their assertion, the court found that the defen-
dants failed to analyze how the equitable principle sup-
ports their position.20 The defendants have not offered
us an explanation on appeal, and we find the principle
inapplicable. See footnote 19 of this opinion.
The court found on the basis of the evidence that
at the time the restriction was created in 1941, the
remainder of the land was undeveloped farmland. Mary
Alice Vaughan’s land was adjacent to the plaintiffs’
property to the north and also fronted on Hoyt Street.
The court inspected the entire thirty acre parcel in the
company of the parties’ counsel and found that with
the exception of the lots owned by the Martins and the
Cronins, the remaining thirty acres of the Waterbury
land is topographically distinct from the plaintiffs’ prop-
erty in that it is situated at a high elevation and is
physically isolated from the plaintiffs’ property. The
court therefore inferred that when viewed in the context
of the development of the Waterbury land, including
Briar Brae and the Webb subdivision, the restriction
was intended to benefit only that portion of the grantor’s
remaining land depicted on the plaintiffs’ exhibit 23,
which is the Waterbury homestead. The court found
that its inference was buttressed by the fact that the
restriction is not contained in any of the deeds to the
thirty-one lots comprising Briar Brae. Lot 3 was con-
veyed to the Martins only subject to the ‘‘effect, if any’’
of the restriction. The court, therefore, concluded that
the Waterbury estate manifested an intent not to restrict
the remainder of the thirty acres, which is now Briar
Brae.
The court found that the language ‘‘effect, if any’’ and
similar words was consistent with the grantor’s intent.
In coming to its conclusion, the court relied on Marion
Road Assn. v. Harlow, supra, 1 Conn. App. 335–36,
stating that the present facts ‘‘bring this conveyance
within the class of cases in which the restrictions will
generally be construed to have been intended for the
benefit of the [retained] land, since in most cases it
could obviously have no other purpose, the benefit to
the grantor being usually a benefit to him as owner of
the land, and . . . if the adjoining land retained by the
grantor is manifestly benefitted by the restriction, it
will be presumed that it was so intended.’’ (Internal
quotation marks omitted.) In applying the Marion Road
Assn. rationale, the court stated that it is ‘‘obvious’’ that
the restriction could have no other purpose than to
protect the grantor’s homestead.
On the basis of our review of the evidence and the
historical development of the Waterbury land, we agree
with the court that the grantor intended to protect the
Waterbury homestead from the suburban development
and encroachment taking place in Darien at the time
Crandall conveyed the 1.544 acres of the Waterbury
land to Vaughan.21 We thus conclude that the court’s
finding that the Waterbury homestead was the intended
beneficiary of the restriction is not clearly erroneous.
C
The defendants’ third claim of factual error is that
the court improperly found that the dominant estate
did not include Briar Brae. We again disagree that the
court’s finding is unsupported by the evidence.
In its memorandum of decision, the court concluded
that the Waterbury homestead was the beneficiary of
the restriction. In reaching that conclusion, it stated:
‘‘If the restriction runs with the land and if, arguendo,
it was intended to benefit Briar Brae, it falls within the
. . . class [of restrictions] which is known as the
retained land theory.’’ As we concluded in part I B of
this opinion, the court properly found that the restric-
tion was for the benefit of the Waterbury homestead.
Most significantly, the restriction is not contained in
any of the deeds to the lots in Briar Brae. If the grantor
had intended to benefit the lots in Briar Brae by
restricting development, it can fairly be assumed that
the grantor would have similarly restricted develop-
ment there.
Finally, the defendants claim that the court’s three
alleged erroneous findings are interconnected and have
caused them prejudice. Despite this assertion, the
defendants have offered no explanation as to how they
have been prejudiced or harmed by the court’s findings.
The defendants reside in single-family homes on lots
of approximately one-half acre in size. They have not
explained how permitting the plaintiffs to subdivide
their lot into two lots of approximately 0.75 acres in
size will cause them harm. The defendants, therefore,
cannot prevail on their claim that three of the court’s
factual findings are not supported by the evidence.
II
LEGAL CLAIMS
The defendants claim that the court erred as a matter
of law by (1) going beyond the four corners of the deeds
in its interpretation of the ‘‘effect, if any’’ language in
the Martins’ chain of title, and (2) misapplying the signif-
icant change of circumstances test of Fidelity Title &
Trust Co. and the abandonment test of Shippan Point
Assn., Inc. We disagree with the defendants’ claims.
‘‘The trial court’s legal conclusions are subject to
plenary review. [W]here the legal conclusions of the
court are challenged, we must determine whether they
are legally and logically correct and whether they find
support in the facts set out in the memorandum of
decision . . . .’’ (Internal quotation marks omitted.)
Hartford Fire Ins. Co. v. Warner, 91 Conn. App. 685,
687–88, 881 A.2d 1065, cert. denied, 276 Conn. 919, 888
A.2d 88 (2005).
A
The defendants first claim that the court erred by
going beyond the four corners of the deeds in its inter-
pretation of the ‘‘effect, if any’’ language in the Martins’
chain of title. We disagree.
‘‘[Th]e determination of the intent behind language
in a deed, considered in the light of all the surrounding
circumstances, presents a question of law on which our
scope of review is . . . plenary. . . . Thus, when
faced with a question regarding the construction of
language in deeds, the reviewing court does not give
the customary deference to the trial court’s factual
inferences. . . .
‘‘The meaning and effect of the [restrictive covenant]
are to be determined, not by the actual intent of the
parties, but by the intent expressed in the deed, consid-
ering all its relevant provisions and reading it in the
light of the surrounding circumstances . . . . The pri-
mary rule of interpretation of such [restrictive] cove-
nants is to gather the intention of the parties from their
words, by reading, not simply a single clause of the
agreement but the entire context, and, where the mean-
ing is doubtful, by considering such surrounding cir-
cumstances as they are presumed to have considered
when their minds met. . . . A restrictive covenant
must be narrowly construed and ought not to be
extended by implication. . . . Moreover, if the cove-
nant’s language is ambiguous, it should be construed
against rather than in favor of the covenant.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) Alligood v. LaSaracina, 122 Conn. App. 479,
482, 999 A.2d 833 (2010).
The restriction appeared in the 1941 committee deed
to Vaughan and stated in relevant part: ‘‘This deed is
given by the grantor and accepted by the grantee upon
the following restrictive covenants and agreements,
which shall run with the land hereby conveyed and be
binding upon the grantee, his heirs and assigns forever
. . . .’’ The 1953 deed from Vaughan conveying his prop-
erty to the Shepherds contained the restriction stated
in the following manner: ‘‘Said premises are subject to
. . . restrictive covenants and agreements of record
. . . .’’ In 1954, the Shepherds conveyed 1.38 acres of
land to the Andersons; the deed contained the following
pertinent language: ‘‘Said premises . . . [b]eing a por-
tion of the premises conveyed to the said grantors by
. . . Vaughan by a deed dated . . . 1953 . . . [s]aid
premises are conveyed subject to . . . [r]estrictive
covenants contained in a deed from . . . Crandall . . .
to . . . Vaughan . . . .’’ In 1956, the Shepherds sold
2.274 acres of their land to the Webbs and signed a
deed that stated in relevant part: ‘‘Said premises are
conveyed subject to restrictive covenants and
agreements as set forth in a deed given by . . . Cran-
dall . . . to . . . Vaughan . . . insofar as they affect
the above described premises . . . .’’ Schedule A
attached to the Martins’ deed states in relevant part
that the premises are subject to ‘‘[t]he effect, if any, of
restrictive covenants and agreements contained in a
deed from . . . Crandall . . . to . . . Vaughan
. . . .’’ The plaintiffs’ deed states in relevant part that
the premises are subject to ‘‘[r]estrictive covenants and
agreements set forth in a deed from . . . Crandall . . .
to . . . Vaughan . . . .’’
The descriptions of the restriction in the deeds con-
veying all or a portion of the land belonging to the
parties are not consistent. The court found that lan-
guage such as ‘‘effect, if any’’ in the deeds raised a
question as to the applicability of the restriction to the
present day. ‘‘Where legal conclusions are challenged,
we must determine whether they are legally and logi-
cally correct and whether they find support in the facts
found by the [finder of facts].’’ (Internal quotation
marks omitted.) Shippan Point Assn., Inc. v. McManus,
supra, 34 Conn. App. 214. Given that ambiguity in the
deeds, we conclude that it was not improper for the
court to look beyond the four corners of the deeds to
determine the intent of the parties to the deeds, as it
was entitled to do pursuant to our decisional law. See,
e.g., Wood v. Amer, 54 Conn. App. 601, 605, 736 A.2d
162 (1999), aff’d, 253 Conn. 514, 755 A.2d 175 (2000).
The defendants’ claim therefore fails.
B
The defendants’ second legal claim is that the court
erred by concluding that the restriction that encum-
bered the triangular area of land acquired by Vaughan
expanded to encumber the entire Webb subdivision
when it was conveyed by the Shepherds to the Webbs.
We disagree.
As we have stated throughout this opinion, the intent
of the parties is to be determined by the language of
the deed. In their appellate brief, the defendants have
not looked to the language of the relevant deed but
rely instead on testimony and the stated beliefs of the
parties. Their claim and argument ignores the plain
language of the deed from the Shepherds to the Webbs:
‘‘All that certain piece . . . of land, together with the
buildings and improvements thereon . . . containing
in area 2.274 acres . . . and bounded . . . as follows:
Northerly 293.48 feet . . . Easterly 317.17 feet . . .
Southerly 251.56 feet . . . Westerly 385.27 feet . . . .
The major portion of said premises is shown and deline-
ated on a certain map entitled Map Showing Property
to be conveyed to Mary Alice Vaughan . . . 1937 . . .
and the Easterly portion of said premises is . . . shown
. . . on a certain map entitled, Map of Parcel No. 5
. . . . Said premises are conveyed subject to restric-
tive covenants and agreements as set forth in a deed
given by . . . Crandall . . . to . . . Vaughan . . .
insofar as they affect the above described premises
. . . .’’ (Emphasis added; internal quotation marks
omitted.) The entire parcel acquired by the Webbs was
made subject to the restriction ‘‘insofar as they affect
the above described premises . . . .’’ The premises
described in the deed is roughly rectangular in shape.
No portion of the deed sets off and describes a triangu-
larly shaped area of land that by itself is subject to
the restriction. On the basis of our construction of the
Webbs’ deed, we conclude that the court did not err
by concluding that the entire premises purchased by
the Webbs is subject to the restriction.
C
The defendants third legal claim is that the court
improperly applied the facts of the present case to the
tests enunciated in Shippan Point Assn., Inc., and
Fidelity Title & Trust Co. We do not agree.
The defendants acknowledge that the basis of the
plaintiffs’ action is the legal theory that there has been
a permanent change of circumstances that frustrates
the purpose of the restriction in the deed to Vaughan,
that the restriction has been abandoned, and that the
restriction does not benefit anyone. After hearing the
evidence and reviewing the briefs and arguments of the
parties, the court agreed with the plaintiffs’ arguments.
In coming to its conclusions, the court found that the
restriction was violated by the Webbs and the plaintiffs,
and that no one sought to enforce the restriction at
the time the violations were committed. Moreover, the
restriction was established when there was but one
residential building on thirty acres of farm land. Those
thirty acres have now been subdivided into thirty-five
lots with one permanent dwelling on each of them.
‘‘[W]hen presented with a violation of a restrictive
covenant, the court is obligated to enforce the covenant
unless the defendant can show that enforcement would
be inequitable.’’ (Internal quotation marks omitted.)
Grady v. Schmitz, supra, 16 Conn. App. 301–302. ‘‘Such
a change in circumstances is decided on a case by case
basis, and the test is whether the circumstances show
an abandonment of the original restriction making
enforcement inequitable because of the altered condi-
tion of the property involved.’’ (Internal quotation
marks omitted.) Id., 302. ‘‘Any such change in conditions
must be so substantial so as to frustrate completely the
intent of the original covenant so that it should be
inequitable to enforce it. Shippan Point Assn., Inc. v.
McManus, [supra, 34 Conn. App. 214]. Such a change
in circumstances includes repeated violations of the
restrictions without effective action to enforce them.’’
Cappo v. Suda, supra, 126 Conn. App. 9. ‘‘Change in
circumstances, such as use of the benefited property for
purposes other than those contemplated by the original
covenant, may justify the withholding of equitable relief
to enforce a covenant.’’ Grady v. Schmitz, supra, 302.
On appeal, the defendants argue that the court
improperly focused its change of circumstances analy-
sis on the surrounding area rather than on the property
subject to the restrictive covenant. The defendants also
argue that the court erred in finding that the Waterbury
homestead was the intended beneficiary of the restric-
tion rather than Briar Brae. Although we agree with the
court that the Waterbury homestead was the intended
beneficiary of the restriction, in the final analysis,
whether Briar Brae or the Waterbury homestead was
the intended beneficiary, has no effect on the outcome.
The purpose of the restriction has been frustrated given
a permanent, substantial change in circumstances of
the Waterbury land since Crandall deeded the land to
Vaughan.22 See Shippan Point Assn., Inc. v. McManus,
supra, 34 Conn. App. 209.
At the time the Waterbury nieces commenced the
partition action, the Waterbury land contained thirty
acres of farmland and one dwelling house. The nieces
alleged that the character of Darien was changing from
rural farmland to suburban subdivisions. The first piece
of land they partitioned—2.11 acres—contained the
Waterbury homestead. The next piece of land parti-
tioned was 1.544 acres adjacent to the Waterbury home-
stead. The committee’s deed stated that no more than
one dwelling was to be constructed on the 1.544 acres.
The partition was predicated on an assumption that
change was coming to the Waterbury land, and the
restriction was intended to limit density and to protect
the Waterbury homestead. The benefit of the restriction,
therefore, inured to the Waterbury homestead.
Almost fifteen years later, the remainder of the Water-
bury land was sold without restriction, save for the
Darien Zoning Regulations. Since that time, that land
then conveyed has been subdivided into thirty-one one-
half acre lots, more or less, i.e., Briar Brae. If Briar Brae
was to benefit from the restriction on the plaintiffs’
land, the beneficial purpose is not obvious. Briar Brae
is the embodiment of what the restriction was intended
to avoid. The restriction, therefore, has been frus-
trated.23
Assuming that the restriction was to benefit the
Waterbury homestead from increased suburban den-
sity, the benefit was further eroded when the Webbs
created their own three lot subdivision on what was
the Waterbury homestead. Although the Webbs’ deed
contains the ‘‘effect, if any’’ restriction to the entire
parcel, no one in Briar Brae, if it was the intended
beneficiary of the restriction, sought to enforce it when
the Webbs subdivided their land or when more than
one structure and a fence were erected on the plaintiffs’
land. The restriction, therefore, was abandoned when
none of the owners of lots in either Briar Brae or the
Webb subdivision sought to enforce it.
Finally, even assuming that the purpose of the restric-
tion was to protect the Waterbury homestead or Briar
Brae, neither of the properties is benefiting from it
today. Although the defendants claim that they are prej-
udiced by the trial court’s having declared the restric-
tion null and unenforceable, none of the owners of what
was the original Waterbury land is served by preventing
the plaintiffs from dividing their land roughly in half so
that it conforms in approximate size to every other lot
that surrounds it on three sides.
For the foregoing reasons, we conclude that the trial
court properly determined that the restriction in the
plaintiffs’ deed is not enforceable because its purpose
has been frustrated by a substantial and permanent
change in circumstances, it has been abandoned by lack
of enforcement, and it benefits no land.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘Because servitudes create property interests that are generally valuable,
courts apply the changed-conditions doctrine with caution. . . . The test
is stringent: relief is granted only if the purpose of the servitude can no
longer be accomplished. When servitudes are terminated under this rule, it
is ordinarily clear that the continuance of the servitude would serve no
useful purpose and would create unnecessary harm to the owner of the
servient estate.’’ 2 Restatement (Third), supra., § 7.10, comment (a), p. 395.
2
The plaintiffs represented themselves in the trial court and wrote their
appellate brief, but were represented by counsel for oral argument before
this court.
3
The property is commonly known as 123 Hoyt Street in Darien.
4
The court found that the plaintiffs’ lot is on the eastern side of Hoyt
Street. Their house lies north of the center line, which makes the southern
portion of the lot available for development pursuant to Darien Zoning
Regulations. To build a single-family house on the southern portion of the
lot, the plaintiffs must subdivide their land and create a building lot of at
least one-half acre. A dwelling on a lot created from the plaintiffs’ land that
complies with Darien Zoning Regulations would violate the restriction’s
twenty-five foot southern border setback.
5
The defendants do not claim that the court improperly concluded that
the restriction requiring grantor approval before erecting a dwelling on the
plaintiffs’ lot is unenforceable.
6
The court found that the restriction was ‘‘set forth in a deed from Arthur
I. Crandall, Committee, to Clyde E. Vaughan dated June 5, 1941 . . . . This
deed is given by the grantor and accepted by the grantee upon the following
restrictive covenants and agreements, which shall run with the land hereby
conveyed and be binding upon the grantee, his heirs and assigns forever
viz: (1) said premises shall be used for private residential purposes only,
and shall be limited to the erection thereon of one dwelling house and
accessory buildings; (2) no building shall be erected within fifty (50) feet
of the Easterly line of said premises, nor within twenty-five (25) feet of the
Southerly line thereof; and (3) no building, structure or erection of any kind
shall be erected or maintained on said premises, unless the plans therefore
shall have been approved in writing by the grantor, or his successors, pro-
vided, that such approval shall not be unreasonably withheld.’’ (Internal
quotation marks omitted.)
7
Waterbury’s nieces were Ethel Waterbury Campbell, Florance Waterbury,
and Gladys Wynne-Finch. In this opinion, we refer to them as the Water-
bury nieces.
8
The original committee was Crandall, deceased. Richard W. Fitch,
deceased, succeeded Crandall as the committee.
9
Although Bueno testified that Mary Alice Vaughan and Vaughan were
husband and wife, the court made no finding in that regard.
10
The court found that each of the lots in the Webb subdivision is approxi-
mately 0.75 acres in area. It also found that the creation of the three lot
subdivision violated the restriction. When lot 2 was laid out, its southerly
boundary rendered the existing residence in violation of the restriction’s
twenty-five foot setback, as the residence on lot 2 was setback only fifteen
feet. The court also found that when a single-family home was later built
on lot 1 and on lot 3, no one made an effort to enforce the restriction
permitting only one dwelling on the premises.
11
The owners of lots in Briar Brae that are not adjacent to the land
formerly owned by either Mary Alice Vaughan or Vaughan are not parties
to the present action.
12
The court found that the plaintiffs commenced the action because Pole
M. Chan remarked to den Dooven that ‘‘we have some property interests
in common,’’ the plaintiffs need to know who the beneficiaries of the restric-
might be a deed restriction that might prevent the sale of the lot.’’ Chan
testified that he did not want a second house built on the plaintiffs’ lot
because ‘‘it would create a quality of life issue.’’
13
The plaintiffs argued that Crandall had no right to create the restriction.
The court found that the restriction did not violate the Superior Court’s
partition order because the court confirmed the committee sale to Vaughan
thereby legitimizing both the sale and the deed. None of the parties has
challenged that determination on appeal.
14
In its memorandum of decision, the court denied the defendants’ motion
to dismiss the plaintiffs’ cause of action filed during the course of the
proceedings. The defendants have not challenged the denial of their motion
to dismiss.
15
The Waterbury nieces alleged that they had a life estate in the Waterbury
land that entitled them to the income produced by the land for life but that
the income from the farm was declining and expenses were increasing. The
court quoted some of the allegations in the partition action, to wit: ‘‘In recent
years, many properties in the section of . . . Darien in which the premises
described in paragraph 2 hereof are located, have been sub-divided, and
many homes erected thereon, so that the character of the neighborhood
has changed from a farming section to a suburban neighborhood.’’ (Internal
quotation marks omitted.) The Waterbury nieces also alleged that the Water-
bury land was no longer adapted for farming purposes.
16
‘‘An easement creates a nonpossessory right to enter and use land in
the possession of another and obligates the possessor not to interfere with
the uses authorized by the easement . . . . The burden of an easement
. . . is always appurtenant.’’ 1 Restatement (Third), supra, § 1.2 (1) and (3),
p. 12. ‘‘A ‘negative easement’ is a restrictive covenant.’’ Id., § 1.3 (3), p. 23.
17
The deed from the Shepherds to the Webbs states in relevant part: ‘‘All
that certain piece, parcel or tract of land . . . containing in area 2.274 acres
. . . . Said premises are conveyed subject to restrictive covenants and
agreements as set forth in a deed given by . . . Crandall . . . to . . .
Vaughan . . . insofar as they affect the above described premises . . . .’’
18
The defendants also filed a motion for articulation, which the court
denied. Thereafter, the defendants filed a motion for review, which this
court denied.
19
The defendants cited Stamford v. Vuono, supra, 108 Conn. 365, for the
equitable principle upon which they rely. The principle may be traced in
Connecticut jurisprudence to Bauby v. Krasow, supra, 107 Conn. 112. In
Bauby, the plaintiff sought an injunction, and the underlying issue concerned
notice to the party against whom the restriction was sought to be enforced.
Id., 112. The equitable principle, therefore, is inapplicable to the present
case.
In Bauby, Minnie J. Dalton owned adjoining lots. She lived in a single-
family house on one of the lots; the other lot was vacant until she conveyed
it to Catharine McCarthy. Id., 110–11. The warranty deed to McCarthy con-
tained the clause: ‘‘ ‘Grantee agrees that in the event she shall erect a house
on said property that same will be a single family house.’ ’’ Id. When Dalton
died, her home was conveyed to Frederick C. Bauby, who had actual knowl-
edge of the restrictive covenant in the deed to McCarthy. Id., 111. McCarthy
sold the vacant lot to Annie Krasow by deed warranting the lot to be free
of all ‘‘incumbrances.’’ Id. Krawow began to build a three-family house on
the lot, and Bauby commenced an injunctive action to enforce the restrictive
covenant. Id. ‘‘The question whether [a restrictive] covenant runs with the
land is material in equity only on the question of notice. If it runs with the
land, it binds the owner whether he had knowledge of it or not. If it does
not run with the land, the owner is bound only if he has taken the land
with notice of it.’’ Id., 112.
20
As noted in footnote 19 of this opinion, the principle relied on by the
defendants applies in equity, not in the present case in which the plaintiffs
seek a judicial declaration that the restriction is void and unenforceable.
This court has stated that there is a distinction between an action to enforce
a restrictive covenant and one seeking to modify the restriction in perpetuity.
See Grady v. Schmitz, supra, 16 Conn. App. 301. ‘‘In an action for removal
or relaxation of restrictions the issues are not the same as in one seeking
to enforce them by enjoining breach thereof, and the judgment is more
drastic. Injunction may be denied because of conditions existing at the time,
while as to a judgment which affects the covenants for all time it is to be
considered that it is quite possible that another change may occur subse-
quently which would remove or materially affect the ground upon which
the judgment was based.’’ (Internal quotation marks omitted.) Id., quoting
Fidelity Title & Trust Co. v. Lomas & Nettleton Co., supra, 125 Conn. 376.
21
Despite their claim, the defendants failed to analyze the facts and the
case law relied on by the court, i.e., Stamford, Grady, and Marion Road Assn.
22
The defendants claim that the court improperly applied the Shippan
Point Assn., Inc., change of circumstances test to the facts of this case, as
the change of circumstances test is difficult to meet. We conclude that the
change of circumstances test applied in that case was properly applied to
the present facts.
In Shippan Point Assn., Inc., the plaintiff sought to enjoin the defendants
from constructing more than one dwelling on their lot. Shippan Point Assn.,
Inc. v. McManus, supra, 34 Conn. App. 210. The land belonging to the parties
originally was part of approximately twenty-five lots formed in 1909. Id.,
211. Each of the deeds contained a restrictive covenant limiting each lot to
a dwelling house for a single family. Id. The defendants alleged numerous
special defenses, including that the restrictive covenant was no longer effec-
tive due to changed circumstances. Id., 213. The matter had been referred
to an attorney trial referee who found that twelve of the twenty-five original
lots ‘‘had been implicated either in subdivision or in having more than two
residential buildings . . . on individual lots.’’ Id. This court applied the
substantial change of circumstances test in Grady v. Schmitz, supra, 16
Conn. App. 301–302. In addition to its finding that twelve of the original
twenty-five lots now contained two houses, the attorney trial referee found
that many properties had carriage houses that were rented in violation of
the covenant. Id., 216. This court concluded that due to a substantial change
in the conditions, the ‘‘original covenant has now been completely frustrated
and it would be inequitable to enforce it.’’ Id.
In the present case, the defendants rely on several Superior Court cases
to support their argument that the facts of this case do not warrant a finding
that the restriction has been frustrated due to a change of circumstances.
After reviewing the cases cited by the defendants, we conclude that they
do not support their position. See Discala v. Arcamone, Superior Court,
judicial district of Stamford-Norwalk, Docket No. CV-06-4007607-S, 2006 WL
1644533, *8 (May 24, 2006) (lots in subdivision developed in strict accordance
with restrictions, no lots subdivided for sale or other purposes and no
nonresidential uses of properties); Revonah Woods Property Owners Assn.,
Inc. v. Rubino, Superior Court, judicial district of Stamford-Norwalk, Docket
No. CV-03-0197808-S, 2004 WL 2094889, *4 (August 23, 2004) (plaintiff had
not abandoned effort to enforce side yard setback and three violations out
of twenty-five homes does not indicate substantial change of circumstances);
Sturges v. Rissolo, Superior Court, judicial district of Fairfield, Docket No.
CV-01-0384369-S, 2003 WL 22205927, *4 (September 9, 2003) (no widespread
rejection or disobedience of restrictive covenant and no abandonment of
restrictive covenant such that there is no longer benefit to permitting only
one house per lot); Murphy v. Kelly, Superior Court, judicial district of
Tolland, Docket No. CV-02-0077886-S, 2002 WL 31600858, *4 (November 7,
2002) (33 Conn. L. Rptr. 424) (injunction requiring removal of vinyl siding
on new construction under claim that substantial change in quality of such
siding in subdivision where vinyl siding restriction defined in deed).
23
The defendants claim that the court improperly applied the Fidelity
Title & Trust Co. test to Briar Brae. The restrictive covenant at issue in
Fidelity Title & Trust Co. v. Lomas & Nettleton Co., supra, 125 Conn. 373,
concerned, among other things, the cost of any house initially built on a lot
facing a particular street. Id., 374. The properties were conveyed prior to
the Great Depression and subsequent economic events made enforcement
of the restrictive covenant problematic. Id., 374–75. The complaint sought
a declaratory judgment decreeing a modification of the building restrictions.
Id., 375. Certain of the defendants demurred to the complaint on the ground
that the changes in economic conditions and in building costs and other
attendant circumstances were not so permanent as to justify a modification
in the restrictive covenant. Id., 376. Out of Fidelity Title & Trust Co. came
the significant change in circumstances test identified by the court in the
present matter.
‘‘Most of the cases in which general relief from restrictive covenants has
been obtained involve situations where, since the time when restrictions
were established, there has been such a radical and permanent change in
use or occupancy of premises in the neighborhood—as from residential to
business purposes—as to defeat the objects sought to be achieved by the
restriction.’’ Id., 377. The trial court found that the test had been satisfied
if Briar Brae was the intended beneficiary of the restriction because the
very land it was intended to benefit—farmland—has itself been subdivided
into numerous suburban lots that are each free of any such restriction.
Moreover, the deed to the Martins’ lot has a similar restriction and has been
in violation of the restriction for years. The court found that the houses on
the various lots, by their very nature, were permanent. The changes were
found to be substantial and permanent and, therefore, frustrated the purpose
of the restriction.
APPENDIX
APPENDIX