The New Jersey Appellate Division recently affirmed a lower court’s decision that held that a 1949 covenant restricted the use of property to a single family residence and prohibited the construction of a religious center.  See James O. v. Chai Ctr. for Living Judaism, Inc., 2016 WL 4262655 (N.J. Super. Ct. App. Div. Aug. 15, 2016).  There, two tracts of land were conveyed in 1899 subject to a covenant that prohibited “business of any kind” from being conducted.  The restriction further listed a number of proscribed businesses, including breweries and slaughterhouses.  In 1949, the owner of four of these restricted lots sold one, and the deed stated that “the premises hereby conveyed shall be restricted to one private dwelling house for one family with garage appurtenant thereto.”  In 2009, the owner of this lot, as well as its neighbor, filed an application to demolish the existing structures on the lots and construct a house of worship.  The other neighbors filed this lawsuit to enjoin this construction, and the parties cross-moved for summary judgment.  The trial court held that, although the 1899 restriction did not prohibit this construction, the 1949 deed did, and the court barred the defendants from constructing their house of worship.  Both parties appealed, and the Appellate Division affirmed.

The Appellate Division first determined that the restrictions in the 1899 deed did not prohibit this construction on the properties.  It agreed that the terms of the covenant were ambiguous because it listed a number of “objectionable” businesses that were prohibited, none of which included a house of worship, and “cannot be found to solely restrict use of the property to a single family residence.”  However, the court also affirmed that the restriction in the 1949 deed was specific enough for the plaintiffs to prevail.  The covenant was put in the deed by the grantor, who also owned the neighboring lots, and who “sought to ensure the grantor’s continued quiet enjoyment of the two retained lots.”  Finally, the court found that the defendants’ free exercise of religion was not being impeded because “when reviewing a valid restrictive covenant ‘[n]either at law nor in equity is it written that a license has been granted to religious corporations, by reason of the high purpose of their being, to set covenants at naught.’”

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com.