Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-northern judicial district No. 2005-848 MARGARET A. SHAFF v. EDITH W. LEYLAND Argued: October 18, 2006 Opinion Issued: December 6, 2006 Devine, Millimet & Branch, P.A., of Manchester (David P. Eby on the brief and orally), for the petitioner. Cassidy Law Office, PLLC, of Concord (James M. Cassidy on the brief and orally), for the respondent. HICKS, J. The respondent, Edith W. Leyland, appeals an order of the Superior Court (Conboy, J.) granting summary judgment to the petitioner, Margaret A. Shaff, on the basis that the respondent lacked standing to enforce a restrictive covenant contained in a warranty deed. We affirm. The trial court found the following facts. In the 1960s, the respondent acquired approximately seventy-five acres along Mont Vernon Road in Amherst, where she lived in the only house located on the property. Beginning with the sale of her home in 1975, the respondent sold portions of this land to

various parties. In 1985, she conveyed approximately twenty-three acres to the petitioner by a warranty deed that contained the following restrictive covenant: The above described premises are conveyed subject to the restriction, which shall run with the land, that the Grantees, their heirs and assigns shall construct on said premises only a colonial-type residence having a market value of at least One Hundred Thousand Dollars ($100,000). The respondent did not reserve a right of enforcement in the deed. In 1998, she conveyed the last 11.6 acres of the original seventy-five acre parcel. The respondent currently owns no real estate near the original seventy-five acre parcel or in the town of Amherst. The petitioner sought a declaratory judgment that the restrictive covenant does not limit the number of homes to be built on her property. She moved for summary judgment, requesting that the trial court determine as a matter of law that the respondent lacks standing to object to the relief she sought. Noting that "the respondent does not dispute that she currently owns no land in Amherst . . . that benefits from the Restrictive Covenant," the trial court entered summary judgment for the petitioner because "the respondent will suffer no legal injury" if the restrictive covenant is extinguished and thus she lacks standing to enforce it. In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Handley v. Providence Mut. Fire Ins. Co., 153 N.H. 340, 341 (2006). "If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, the grant of summary judgment is proper. We review the trial court's application of the law to the facts de novo." Id. (quotations and citation omitted). "One seeking to enforce a restriction in equity must have a standing entitling him to seek equitable relief." Rogers v. State Roads Commission, 177 A.2d 850, 852 (Md. 1962); see Lake v. Sullivan, 145 N.H. 713, 716 (2001) ("In evaluating whether a party has standing to sue, we focus on whether the [party] suffered a legal injury against which the law was designed to protect." (quotation omitted)). Because the issue is one of first impression in New Hampshire, the trial court looked to the law of other jurisdictions. It applied the majority rule that "[i]f an individual does not own the property that is benefited by th[e] restrictive covenant, he or she has not suffered a legal injury," and therefore does not

2

have standing to enforce the restriction. The trial court found this rule to be "consistent with New Hampshire law concerning restrictive covenants and standing." "A covenant, as used in the context regarding the use of property, is an agreement by one person, the covenantor, to do or refrain from doing something enforceable by another person, the covenantee. Every covenant has a burden to the covenantor and a benefit to the covenantee." Waikiki Malia Hotel v. Kinkai Properties, 862 P.2d 1048, 1056 (Haw. 1993) (citation omitted). The benefit and the burden of a covenant are subject to two general classifications - "appurtenant" and "in gross" - which themselves are subject to further classification as "personal" or "running with the land." Restatement (Third) of Property: Servitudes

Download 2005-848, MARGARET A. SHAFF v. EDITH W. LEYLAND.pdf

New Hampshire Law