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*********************************************** 
ABEL V. JOHNSON—DISSENT

BEACH, J., concurring in part and dissenting in part.

I agree with the facts reported in the majority opinion

and with most of the principles of law stated therein.

I also agree with the analysis so far as it goes. The

majority’s analysis stops, however, with the conveyance

from the original grantors, Horace Havemeyer and

Harry Waldron Havemeyer, to Empire Estates, Inc.

(Empire), reported in volume 792, page 118, of the Stamford land records.1 The majority correctly concludes, in

my view, that the plaintiffs have no standing to enforce

restrictive covenants in the capacity of successor to

any party to the transaction between the original grantors and Empire; the covenant between the original

grantors and Empire restricting the conveyed property

to residential use was ‘‘exacted by a grantor from his

grantee presumptively or actually for the benefit and

protection of his adjoining land which he [retained].’’

(Internal quotation marks omitted.) Contegni v. Payne,

18 Conn. App. 47, 51, 557 A.2d 122, cert. denied, 211

Conn. 806, 559 A.2d 1140 (1989).

Empire, however, later subdivided its property.

Empire caused a map of the subdivision to be recorded

and every newly created lot was subject to identical,

or substantially identical, restrictions. The restrictions

in the deeds provided that the lots were ‘‘conveyed

subject to . . . restrictive covenants and agreements

as contained in a deed from . . . [the original grantors]

. . . to Empire Estates . . . and recorded in the land

records . . . and the terms of a declaration [at volume

917, page 114].’’ The former set of restrictions are those

referenced in the original grantors’ deed, and recorded

in volume 792, page 118 of the land records. They

include the recitation that the ‘‘deed is given and

accepted upon the following express covenants and

agreements which shall run with the land herein conveyed and shall be binding upon the grantee, its successors and assigns, and shall enure to the benefit of the

remaining land of the grantors. . . . 1. Said premises

shall be used for private residential purposes only . . .

and no buildings shall be erected or maintained upon

said premises except single-family dwelling houses and

appropriate outbuildings. 2. Said tract shall not be subdivided for building purposes into plots containing less

than one (1) acre in area, and not more than one (1)

such dwelling house shall be erected or maintained on

any such plot.’’

The second set of restrictions referenced in the deeds

to the lots comprising the subdivision are recited in a

declaration recorded at volume 917, pages 114–18, of

the land records. The parties agree that the second

set of restrictions, imposed by Empire’s trustees, were

imposed pursuant to a common scheme of development
and, thus, are enforceable by subsequent owners of lots

within the subdivision. See DaSilva v. Barone, 83 Conn.

App. 365, 371–73, 849 A.2d 902, cert. denied, 271 Conn.

908, 859 A.2d 560 (2004); Contegni v. Payne, supra, 18

Conn. App. 52–54.

The language in the deeds by which Empire conveyed

the lots in the subdivision stated that the lots were all

‘‘subject to’’ two sets of restrictions. A dispositive issue

presented is whether the language in the deeds stating

that the conveyed lots were ‘‘subject to’’ the original

grantors’ restriction had the effect only of providing

notice of the prior restrictions to grantees or whether

the language also had the substantive effect of creating

new obligations on the grantees and their successors.

Or, stated differently, the issue may be phrased as

whether Empire had the intent to impose the common

restrictions referenced in the original grantors’ deed.

‘‘The owner’s intent to develop the property under a

common scheme is evidenced by the language in the

deeds. . . . [T]he determination of the intent behind

language in a deed, considered in the light of all the

surrounding circumstances, presents a question of law

on which our scope of review is plenary.’’ (Citation

omitted; internal quotation marks omitted.) Cappo v.

Suda, 126 Conn. App. 1, 8, 10 A.3d 560 (2011).

A useful discussion appears in 1 Restatement (Third),

Property, § 2.2, comment (d), pp. 63–64 (2000): ‘‘The

term ‘subject to’ can be used either to create a servitude

or to disclose the fact that land conveyed is already

burdened by a servitude. Since the term is ambiguous,

courts must look to the surrounding circumstances to

determine whether the parties used it with intent to

create a servitude. . . . If the land conveyed was

already burdened by such a servitude, the ‘subject to’

language is often included to qualify the grantor’s covenant against encumbrances, rather than to create a new

servitude. However, the circumstances that the property was already burdened by a servitude of the type

described is not determinative. Other circumstances,

such as the fact that the language is used in conveyances that effectuate a new subdivision of land, may

justify the inference that the parties intended to create

new servitudes for the benefit of the other lot owners

in the subdivision.’’ (Emphasis added.)

Comment d, illustration 3, to § 2.2 of the Restatement

provides further insight: ‘‘Developer acquired a 40-acre

parcel ‘subject to’ a restriction to residential uses only.

The parcel had been burdened with such a servitude

restriction 10 years earlier. In the absence of circumstances indicating a different intent, the conclusion is

justified that the conveyance to Developer was not

intended to create a new servitude. Developer then

subdivides the parcel into 40 lots, according to a

recorded plot map, and conveys each lot ‘subject to’ a

restriction to residential uses only. The circumstances
justify the conclusion that the conveyances of the subdivided lots are intended to create new servitudes benefiting the other lot owners in the subdivision.’’ Id., illustration (3), p. 64.

The conclusion that Empire intended to create a common scheme of development, maintaining the restriction that only residential uses were allowed, is justified.

First, as noted in the Restatement, the recitation of the

‘‘subject to’’ restriction in the context of the creation

of a subdivision itself supports the conclusion that the

restriction is part of the common scheme of development. Second, the second set of restrictions in the

deeds, newly created by Empire, reinforces the conclusion. This second set contains thirty-five articles, most

of which dictate requirements governing the construction and maintenance of ‘‘houses’’ and ‘‘house sites.’’

Other articles refer to pets allowed in ‘‘the family dwelling,’’ the length of ‘‘any dwelling,’’ and surveys for ‘‘proposed dwellings.’’ The scheme clearly contemplates residences; there are no articles regarding commercial use

or regulation of businesses.

Additionally, equity favors the standing of lot owners

to enforce the restrictive covenants. It is not disputed

that the restrictions substantially were uniform as to

the lots in the subdivision, and each lot was conveyed

subject to the original grantors’ restriction.2 Where

there is a uniform scheme of development, ‘‘any grantee

may enforce the restrictions against any other grantee.’’

(Internal quotation marks omitted.) DaSilva v. Barone,

supra, 83 Conn. App. 373. ‘‘The doctrine of the enforceability of uniform restrictive covenants is of equitable

origin. The equity springs from the presumption that

each purchaser has paid a premium for the property

in reliance upon the uniform development plan being

carried out. While that purchaser is bound by and

observes that covenant, it would be inequitable to allow

any other landowner, who is also subject to the same

restriction, to violate it.’’ Contegni v. Payne, supra, 18

Conn. App. 52. Regardless of the genesis of the first

restrictive covenant, all of the owners in the subdivision

were obligated to abide by it, and equity favors their

ability to enforce it.

Several cases in Connecticut jurisprudence are consistent with the conclusion that the restriction as to

residential use only is enforceable by a lot owner within

the subdivision. See Maganini v. Hodgson, 138 Conn.

188, 192–93, 82 A.2d 801 (1951) (land deeded to developer restricted to residential use; developer imposed

further restrictions on deeds to lots within subdivision:

‘‘[w]hen, under a general development scheme, the

owner of property divides it into building lots to be sold

by deeds containing substantially uniform restrictions,

any grantee may enforce the restrictions against any

other grantee’’); Mellitz v. Sunfield Co., 103 Conn. 177,

182, 129 A. 228 (1925) (restrictions for common benefit
of all subsequent lot owners ‘‘create a right or interest

in them in the nature of an easement which will be

enforced in equity against the grantee of one of the

other lots’’); 5011 Community Organization v. Harris,

16 Conn. App. 537, 540, 548 A.2d 9 (1988) (restrictions

in common scheme of development benefit lot owners);

see also Prime Locations of CT, LLC v. Rocky Hill

Development, LLC, 167 Conn. App. 786, 796 n.10, 145

A.3d 317, cert. denied, 323 Conn. 935, 150 A.3d 686

(2016).3

I would conclude, then, that the plaintiffs had standing to enforce the restriction regarding residential use,

and I agree with the findings and conclusions of the

trial court as to enforcement of the restriction, except as

limited by the majority opinion in part II of its opinion.

I, therefore, concur, in part, and respectfully dissent,

in part.

1 The restriction was amended in volume 808, page 355. The amendment

is immaterial to the analysis of the issues in the present case.

2 The majority suggests that even though the restrictions emanating from

the original grantors ‘‘might apply with equal force to the parties and others

in their subdivision, it cannot reasonably be suggested that the plaintiffs

have the right to enforce them.’’ In my view, the majority overlooks the

clear language in DaSilva v. Barone, supra, 83 Conn. App. 372, and Contegni

v. Payne, supra, 18 Conn. App. 51: where there are ‘‘uniform covenants

contained in deeds executed by the owner of property who is dividing his

property into building lots under a general development scheme,’’ covenants

may be enforced by those mutually bound. All of the factors listed in DaSilva

and Contegni suggesting the existence of a common scheme are satisfied,

and none of the negative factors exist. The majority and I disagree as to

whether the original grantors’ covenants are contained in deeds exacted by

Empire and whether equity favors the ability of those bound by common

covenants to enforce those covenants.

3 The majority goes to great lengths to distinguish the cases cited. I agree

that the cases are not binding precedent but, rather, are only illustrative.