Conford, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.
This is an action in the nature of a bill to quiet title to a parcel of land in the Township of Holmdel. Defendant appeals from the entry of summary judgment in favor of plaintiffs.
Defendant, a developer, by warranty deed conveyed the subject property, consisting of a lot approximately one acre in size, to the plaintiffs for a consideration of $4,000. The deed was delivered on January 13, 1959. Following the collapse of negotiations directed towards agreement on the construction by defendant of a dwelling on the transferred premises, the present suit was instituted.
The focal point of the action is a recital in the deed, inserted under the heading of "covenants, agreements and restrictions," to the effect that:
"(i) The grantors reserve the right to build or construct the original dwelling or building on said premises."
The item is one of those designated in the instrument as "covenants running with the land * * * [which] shall bind the purchasers, their heirs, executors, administrators and assigns."
In support of their motion for summary judgment, plaintiffs set forth that no contract exists or ever did exist between the parties for the construction of a dwelling or building on the premises. The principal officer of the defendant corporation, in a countering affidavit, stated that one of the foremost considerations in fixing the price of the lot, and one of the primary conditions of the sale as it was effected, was the understanding that when the purchasers declared themselves ready and able to build, defendant would act as general contractor.
The trial judge held that the provision in question was unenforceable and should properly be stricken from the deed. He granted plaintiffs the relief demanded in their complaint, namely, an adjudication that: (1) defendant has no claim, right or interest in and to the lands by virtue of the clause in question; (2) defendant has no interest, right or cause of action against plaintiffs by virtue of the covenant; and (3) the clause in question is stricken from the deed and declared null, void and of no further force and effect.
The central issue argued on the appeal is whether the recital constitutes an enforceable covenant restricting the use of plaintiffs' land. Defendant urges that it comprises an ordinary property restriction, entered into for the benefit of the grantor and his retained lands. Plaintiff maintains that the clause is too vague to be capable of enforcement and that, in any event, it amounts to no more than a personal covenant which in no way affects or burdens the realty and has no place in an instrument establishing and delimiting the title to same.
While restrictive covenants are to be construed realistically in the light of the circumstances under which they were created, Javna v. D.J. Fredericks, Inc. , 41 N.J. Super. 353, 358
(App. Div. 1956), counter considerations, favoring the free transferability of land, have produced the rule that incursions on the use of property will not be enforced unless their meaning is clear and free from doubt, Hammett v. Rosensohn , 46 N.J. Super. 527, 535-536 (App. Div. 1957), affirmed 26 N.J. 415 (1958); Bruno v. Hanna , 63 N.J. Super. 282, 285 (App. Div. 1960); Griscom v. Barcelonne , 90 N.J. Eq. 369 (Ch. 1919); Grossman v. Abate , 19 N.J. Super. 516 (Ch. Div. 1952). Thus, if the covenants or restrictions are vague or ambiguous, they should not be construed to impair the alienability of the subject property. For a concise and cogent discussion of the unenforceability of restrictive covenants because of vagueness, see Sutcliffe v. Eisele , 62 N.J. Eq. 222 (Ch. 1901). ...