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Injunction Enforcing Restrictive Covenant Properly Granted Despite Substantial Construction In Violation of the Covenant

The Second Department determined plaintiff property owner was entitled to summary judgment in her action to enforce a restrictive covenant in a neighbor’s (Bryant’s) deed.  The restriction was a setback requirement which was violated.  Because plaintiff started her action early on, the fact that the neighbor’s house was substantially constructed did not matter.  The neighbor was on notice when the construction was done:

…[T]he restrictive covenant in Bryant’s deed was part of a common development scheme created for the benefit of all property owners within the subdivision. As such, the plaintiff has standing to enforce the restrictive covenant at issue … .

We … reject Bryant’s assertion that the Supreme Court erred in declining to dismiss the causes of action seeking injunctive relief on the ground that they had been rendered academic. As the plaintiff correctly argues, those causes of action were not rendered academic, despite the substantial completion of the home … . Under the circumstances, the plaintiff acted promptly in commencing this action and Bryant was put on notice that if she proceeded with construction, she would do so at her own risk … .

On the merits, we find that the Supreme Court properly granted the plaintiff’s cross motion for summary judgment. The law has long favored free and unencumbered use of real property, and covenants restricting use are “strictly construed against those seeking to enforce them” … . “[C]ourts will enforce such restraints only where the party seeking enforcement establishes their application by clear and convincing evidence” … . Here, the plaintiff established, prima facie, that the restrictive covenant was applicable and that Bryant’s construction violated that restrictive covenant insofar as the side setback distances were concerned. In opposition to this prima facie showing, Bryant failed to raise a triable issue of fact … .  Hildago v 4-34-68 Inc, 2014 NY Slip Op 03491, 2nd Dept 5-14-14

 

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