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Perelman v. Casiello

April 26, 2007

RAYMOND G. PERELMAN, PLAINTIFF-APPELLANT,
v.
NICHOLAS CASIELLO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. C-144-03.

The opinion of the court was delivered by: Grall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 8, 2006

Before Judges Lisa, Holston, Jr. and Grall.

Plaintiff Raymond G. Perelman and defendant Nicholas Casiello are owners of adjacent ocean-front property in Atlantic City. Restrictive covenants in their respective chains of title establish a setback that runs parallel to and over 100 feet inland from the boardwalk and prohibit construction of more than one residence. Plaintiff commenced this action for declaratory and injunctive relief to enforce the covenants in defendant's deed. The trial court granted summary judgment in favor of defendant on the ground that the restrictive covenant in defendant's chain of title was a personal promise from the original grantee to the original grantor. Plaintiff appeals.*fn1

We conclude that defendant purchased his property with knowledge of restrictive covenants in his chain of title, that the original grantee and grantor intended to burden defendant's land and benefit plaintiff's, and that the right to enforce those covenants transferred to plaintiff with ownership of the property benefited. We further conclude that plaintiff may enforce the restrictive covenants, unless changed conditions that frustrate the purpose of the restriction or equities that make enforcement unjust under the circumstances preclude that relief. Accordingly, we reverse and remand for further proceedings.

The pertinent facts are as follows. In 1917 Mahlon W. Newton owned ocean-front property in Atlantic City. The property consisted of two rectangular parcels of the same dimension - eighty-five feet running parallel to the ocean and 272.3 feet from that line running inland toward Atlantic Avenue.

In 1917 Newton sold Sharp the lot south of the common 272.3 foot boundary (the Newton-Sharp lot). Defendant now owns a portion of the Newton-Sharp lot. The Newton-Sharp deed describes the property conveyed as subject to covenants limiting its use and establishing the setback:

[The conveyance is] SUBJECT, nevertheless, to the following covenants and conditions which are hereby made a part of the consideration of this conveyance: That party of the second part [Sharp], his heirs and assigns, shall not at any time hereafter, erect upon the hereby granted premises, more than one building, which shall be used for no other purpose than as a place of residence, and shall not permit any out buildings of any nature to be erected upon said lot, and that the building erected upon said premises, shall not be nearer than six feet of the sidelines of said lot, or the rear lines of said lot, and that it shall be on a line on the Ocean side of the lot, with the residence of Mrs. Helen N. Farr, and on Montgomery Avenue, shall be kept back from the property line, the same distance as Robert C. Kolb's house, and in a line with said Kolb's house. [Emphasis added.]

When Newton sold to Sharp, he retained the lot north of the common boundary (the Newton-Snowden lot). Prior to his death, Newton sold and repurchased that lot twice. Plaintiff concedes that none of the conveyances involved in those four transactions were by deed that either referenced the restrictive covenants in the Newton-Sharp deed or included similar covenants.*fn2 In 1929 after Newton's death, his heirs conveyed the lot to Snowden.

The Newton-Snowden deed contains restrictive covenants similar to the ones contained in the Newton-Sharp deed. It provided:

SUBJECT, nevertheless, to the following covenants and conditions which are hereby made a part of the consideration of this conveyance;

THAT party of the second part [Snowden], his heirs and assigns, shall not at anytime hereafter, erect upon the hereby granted premises more than one building, which shall be used for any other purpose than as a place of residence, and shall not permit any out-buildings of any nature to be erected upon said lot, and that the building erected upon said premises shall not be nearer than six feet of the said lines of said lot, or the rear lines of said lot, and that it shall be on a line on the Ocean side of the lot with the residence of Edwin A. Bookmyer, and on ...


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