Freedman v. Sufrin, 443 N.J. Super. 128 (App. Div. 2015). This opinion by Judge Fisher today involved the proper interpretation of a restrictive covenant that purported to restrict the removal of trees from plaintiffs’ property. The covenant, one of several contained in a deed from defendants to a developer of the property who long preceded plaintiffs in the chain of title, stated that “[a]ny home constructed on the property shall retain as many trees, shrubs, understory plant life as possible.” That covenant (and others not relevant here) were to “continue until such time as the sellers, Murray N. Sufrin and Ellen Sufrin, reside at [the abutting property].”
Plaintiffs purchased the property covered by the covenant and considered removing some trees. Defendants objected to that, and ultimately plaintiffs filed an action to quiet title. The parties filed cross-motions for summary judgment, and the Chancery Division ruled for plaintiffs, holding the covenant unenforceable. Defendants appealed, but the Appellate Division affirmed.
Judge Fisher cited the settled principle that restrictions on the uses to which land may be put are construed strictly because they impair the transferability of real property. Thus, defendants could not succeed “unless the right to restrict [was] made manifest and clear in the restrictive covenant.” Any doubts or ambiguities were to be resolved in favor of plaintiffs, the parties who sought to use their land without restriction, so that (unlike in the normal case), ambiguities would not preclude summary judgment.
This covenant was not “manifest and clear” in favor of defendants. First, it “long ago lost any vitality once likely intended.” Since the covenant operated “until such time” as defendants resided at the abutting property, “the entire covenant became irrelevant once defendants took up residence next door.” Defendants argued that “until such time” actually meant “so long as.” But Judge Fisher would have none of that. “Unless we are to employ the standard of interpretation famously employed by Humpty Dumpty” (“When I use a word, it means just what I choose it to mean- neither more nor less,” quoted from Lewis Carroll in a footnote by Judge Fisher), defendants’ contention failed.
Second, other aspects of the covenants made clear that the tree restriction applied only to the developer, and that once a house was built on the property, “the language of the covenant lost any sensible meaning for subsequent owners.” Third, it was unclear what “as many trees … as possible” meant. “The common law’s standard of strict construction” prevented recourse to any external source of potential meaning. Thus, although defendants cited Joyce Kilmer’s poem, Trees, Judge Fisher found that unavailing. “Trees may be worthy of our admiration and wonder but does that mean all trees must be left standing until they fall of their own accord?” The covenant was too uncertain to enforce. Accordingly, the decision granting summary judgment to plaintiffs was affirmed.