NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4942-13T1
LISA B. FREEDMAN and JEFFREY
C. ENDA,
APPROVED FOR PUBLICATION
Plaintiffs-Respondents,
November 24, 2015
v.
APPELLATE DIVISION
MURRAY N. SUFRIN and ELLEN L.
SUFRIN,
Defendants-Appellants,
and
PRUDENTIAL FOX & ROACH REALTORS,
VAL NUNNENKAMP, JOHN DRAGANI, JAMES
L. GARDNER, MARCIA RUBENSTEIN GARDNER,
SURETY TITLE CORPORATION, O.C.
EQUITIES, METRO DEVELOPMENT, LLC,
JOSEPH ZERBO and WAYNE ZERBO,
Defendants.
_______________________________________________________
Argued October 27, 2015 – Decided November 24, 2015
Before Judges Fisher, Rothstadt and Currier.
On appeal from the Superior Court of New
Jersey, Chancery Division, Camden County,
Docket No. C-114-11.
Joseph P. Grimes argued the cause for
appellants (Grimes & Grimes, L.L.C.,
attorneys; Mr. Grimes, on the brief).
Hugh A. Keffer argued the cause for
respondents (Fidelity National Law Group,
attorneys; Mr. Keffer, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
In this appeal, defendants Murray and Ellen Sufrin argue
that the judge erred in granting summary judgment in favor of
their neighbors, plaintiffs Lisa B. Freedman and Jeffrey C.
Enda, based on what defendants claim is an erroneous
interpretation of a restrictive covenant which purports to
limit, among other things, the removal of trees from plaintiffs'
property. Because the covenant is unclear and ambiguous, we
affirm.
The parties' cross-motions for summary judgment did not
generate any material factual disputes. The record reveals
that, on February 28, 2011, plaintiffs purchased a two-story,
single-family residence on Covington Lane in Voorhees pursuant
to a written contract that made no mention of a restrictive
covenant. In 1996, however, a predecessor in title — O.C.
Equities — purchased the property and obtained a deed from
defendants that subjected the conveyance to the following
restrictions:
(1) No swimming pool shall be constructed on
the property;
2 A-4942-13T1
(2) The garage and driveway of said property
[shall] be constructed on the side of the
property which does not abut sellers[']
property;
(3) The home to be constructed on the
property [shall] be priced at a minimum of
$275,000.00;
(4) Any home constructed on the property
shall retain as many trees, shrubs,
understory plant life as possible.
[51] The above restrictions will continue
until such time as the sellers, Murray N.
Sufrin and Ellen Sufrin, reside at [the
abutting property].
[6] Any transfer of property by sellers,
Murray N. Sufrin and Ellen Sufrin, will void
the restrictions.
In 1999, O.C. Equities sold the property to Metro Development,
which promptly sold the property to James and Marcia Gardner,
who later sold it to plaintiffs. Although the covenants in
question were not memorialized in these later conveyances, we
assume for present purposes that plaintiffs had actual knowledge
of the restrictions in O.C. Equities' deed.2
Once plaintiffs took possession of this heavily-wooded
property, they considered removing some trees, particularly
1
We have inserted numbers for the last two unnumbered paragraphs
only for ease of reference later in this opinion.
2
We note that the trial judge presumed plaintiffs did not have
knowledge of the restrictions when they purchased the property.
In our opinion, it makes no difference.
3 A-4942-13T1
those with exposed roots that they believed caused a tripping
hazard for one of their children, who has what they describe as
"a balance issue." Controversy arose when defendants observed a
landscaper on plaintiffs' property marking trees for removal.
After advising plaintiffs of the 1996 covenant, defendants
demanded that plaintiffs provide a landscaping plan for their
approval. Plaintiffs provided an arborist report and a
landscaping plan; defendants rejected both.
Consequently, in August 2011, plaintiffs commenced this
quiet-title action in the Chancery Division. The parties cross-
moved for summary judgment and, for reasons set forth in an oral
decision, the judge granted plaintiffs' motion.3 In appealing,
defendants argue that the test devised in Davidson Bros., Inc.
v. D. Katz & Sons, Inc., 121 N.J. 196 (1990), for determining the
enforceability of restrictive covenants on commercial property
should be applied here,4 and, also, that the judge erroneously
3
An amended complaint joined prior property owners and realtors;
all those claims were later disposed of, rendering the summary
judgment in question a final and appealable order.
4
We quickly dispense with defendants' initial contention —
raised for the first time on appeal — that Davidson controls.
That case involved the enforceability of a covenant that barred
use of property for a commercial purpose, a circumstance not
present here. In addition, we note that defendants concede the
restrictions in question are not part of a neighborhood scheme
that might require a different approach. See Caullett v.
(continued)
4 A-4942-13T1
determined that the tree-removal and other restrictions were
personal covenants that did not run with the land. We find all
these arguments lacking in sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(1)(E), and add
only the following brief comments.
We reject defendants' contentions because the restrictions
they would impose on their neighbors do not meet the strict
construction standard imposed by the common law. As cogently
described by then Judge (later Justice) Sullivan:
Restrictions on the use to which land may be
put are not favored in law because they
impair alienability. They are always to be
strictly construed, and courts will not aid
one person to restrict another in the use of
his land unless the right to restrict is
made manifest and clear in the restrictive
covenant.
[Bruno v. Hanna, 63 N.J. Super. 282, 285
(App. Div. 1960).]
Although Bruno acknowledges this rule of strict construction
"will not be applied to defeat the obvious purpose of a
restriction[,] . . . the meaning of a restrictive covenant will
not be extended by implication and all doubts and ambiguities
must be resolved in favor of the owner's unrestricted use of the
land." Id. at 287. This standard remains unchanged. See
(continued)
Stanley Stilwell & Sons, Inc., 67 N.J. Super. 111, 119 (App.
Div. 1961).
5 A-4942-13T1
Berger v. State, 71 N.J. 206, 215 (1976); Cooper River Plaza E.,
LLC v. The Briad Grp., 359 N.J. Super. 518, 526 (App. Div.
2003); Steiger v. Lenoci, 352 N.J. Super. 90, 95 (App. Div.
2002). Accordingly, the existence of ambiguities does not
preclude summary judgment, as would be the case when construing
a contract; to the contrary, in light of the test described in
Bruno, ambiguities invite summary judgment in this context.
With these principles in mind, we turn to the particular
language employed to determine whether the alleged ban on tree
removal was "made manifest and clear." Bruno, supra, 63 N.J.
Super. at 285. We conclude that the covenant does not say what
defendants now argue it says, and that the covenant is, at best,
unclear.
An examination of the fifth paragraph, in fact,
demonstrates that its neighboring provisions long ago lost any
vitality once likely intended. Defendants argue that this fifth
paragraph should be understood as declaring that the first four
provisions are to apply "so long as" defendants reside next
door; in fact, the paragraph expresses the opposite: "The above
restrictions will continue until such time as the sellers,
Murray N. Sufrin and Ellen Sufrin, reside at [the abutting
property]" (emphasis added). Because the most common meaning of
"until" is "up to the time of," the only logical meaning to be
6 A-4942-13T1
attributed to this sentence is that the entire covenant became
irrelevant once defendants took up residence next door. Unless
we are to apply the standard of interpretation famously employed
by Humpty Dumpty,5 defendants' contention that "until such time"
should be translated as "so long as" must be rejected.6
The entirety of the restrictive covenant suggests its
application only to O.C. Equities, the developer of the
property, and supports the trial judge's determination that the
covenant was personal to O.C. Equities and would not apply to
future owners. Numerous terms reveal this intent to limit
application to the builder-owner. The second paragraph mandated
"construct[ion]" of the garage and driveway to the non-abutting
side of the property; the third paragraph imposed a dollar value
5
"'When I use a word,' Humpty Dumpty said, in rather a scornful
tone, 'it means just what I choose it to mean — neither more nor
less.' 'The question is,' said Alice, 'whether you can make
words mean so many different things.' 'The question is,' said
Humpty Dumpty, 'which is to be master — that's all.'" Lewis
Carroll, Through the Looking Glass, ch. VI (1871).
6
Although the record is silent as to when defendants first
resided in the neighboring home, it seems likely they actually
were present when they imposed the restrictive covenant on O.C.
Equities. That particular circumstance, however, would not
suggest the wording of the fourth paragraph should be construed
in some way other than the manner required by the common,
everyday meaning of the words actually employed. That
circumstance would only suggest that defendant Murray Sufrin —
an attorney and drafter of the restrictions — did not convey his
intentions with the clarity needed to bind O.C. Equities, let
alone successors in title, who could not be charged with
knowledge of the identities of the next door residents.
7 A-4942-13T1
on "[t]he home to be constructed on the property"; the fourth
paragraph — the provision directly implicated here — required
the retention of "as many trees . . . as possible" for "[a]ny
home constructed" on the property (emphasis added). Indeed, the
language of the fourth paragraph — retain "as many trees . . .
as possible" — cannot be logically understood as expressing
anything more than O.C. Equities' stipulation to leave as many
trees standing during the construction of the residence as it
could. Viewing these restrictions as a whole, the only
reasonable interpretation limits their application to the
builder of the residence and not any future owners.
Upon completion of construction, the language of the
covenant lost any sensible meaning for subsequent owners. For
example, even when interpreted as defendants urge, the covenant
does not purport to prohibit all tree removal; it expresses only
that "as many trees . . . as possible" be retained. What does
that mean? Does it mean that plaintiffs must retain as many
trees as defendants might possibly require for whatever
unexpressed purpose they might have had in mind? Or as many
trees as may be possibly retained, but perhaps giving the owners
some ability to remove trees in order to keep the premises safe
for occupants and visitors? These questions are unanswerable
because the covenant provides no clue as to what defendants were
8 A-4942-13T1
attempting to preserve by extracting O.C. Equities' agreement to
retain as many trees as possible when constructing the
residence. The common law's standard of strict construction
bars looking elsewhere7 for a clear understanding.8
Because the restrictive covenant: has no application once
defendants occupied the neighboring property, an event that long
ago occurred; can only reasonably be understood as binding O.C.
Equities, an earlier owner that constructed the residence; and
has no rational application to the current owners' use and
enjoyment of their property, we affirm the summary judgment that
declared the restriction null and void and henceforth
unenforceable.
Affirmed.
7
Defendants allude to Joyce Kilmer's Trees (1913) for guidance.
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?
8
Even if the fourth paragraph imposed some sort of aesthetic
guideline for the purpose of preserving a wooded view for
defendants, no court could safely enforce that standard. See
Ginsburg v. White, 139 N.J. Eq. 271, 273-74 (E. & A. 1947)
(recognizing that "[a] contract which is incomplete, uncertain
or indefinite in its material terms will not be specifically
enforced in equity").
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