Village May Not Use Broad Reading Of Restrictive Covenant To Prevent Use
An appellate court upheld a decision finding that a proposed in-ground swimming pool does not violate a restrictive covenant. In Kemp v. Village of Scarsdale the Appellate Division held "the plaintiff established her prima facie entitlement to judgment as a matter of law, as the plain language of the restrictive covenant at issue did not reveal an intent to preclude her proposed use of the property."
The Court noted:
"Since the law favors the free and unobstructed use of real property, a restrictive covenant must be strictly construed against those seeking to enforce it, and may not be given an interpretation extending beyond the clear meaning of its terms (see Witter v Taggart, 78 NY2d 234, 237-238; Wechsler v Gasparrini, 40 AD3d 976; Liebowitz v Forman, 22 AD3d 530, 531; Kaufman v Fass, 302 AD2d 497, 498, cert denied 540 US 1162 )."