The Supreme Court of New York, Richmond County recently granted a permanent injunction prohibiting a residential homeowner from construction of an “extended chimney” because it would violate a neighbor’s restrictive covenant.  See Fiore v. Fabozzi, 56 Misc. 3d 1220(A) (N.Y. Sup. Ct. 2017).  In the case, the petitioners owned two neighboring properties.  In 2003, they sold one of the properties to the respondent, but added a handwritten restrictive covenant to the deed that stated, “[n]o additions or alterations above one story or 17.00 feet to the top of roof of any structure as measured from the existing basement floor elevation shall be made to any part of the subject premises.”  The covenant, which was to protect the petitioners’ ocean view, further stated that it would remain in effect as long as the petitioners lived in their home.  In 2016, the respondent began construction on a “gazebo structure and chimney” on his property, and the petitioners filed an action to enjoin the construction.

During a hearing on the matter, the respondent admitted that he agreed to the covenant, but did not believe it affected his construction.  The Court disagreed.  First, it found that the restriction was enforceable because it provides a benefit to the petitioners and there were no changed circumstances that rendered the purpose of the covenant incapable of being accomplished.  Second, it rejected the respondent’s argument that the gazebo and chimney were not “additions or alterations,” holding that they were more than just “minor alteration[s] or ordinary repair[s]” to the property.  Finally, the Court determined that the covenant properly should be read as prohibiting any “additions or alterations above one story or 17.00 feet to the top of roof of any structure,” whichever is greater.  Accordingly, the Court held that the respondent was enjoined from constructing the chimney, which was greater than one story or 17 feet from the floor of the basement.  The gazebo, which was greater than 17 feet from the basement floor but less than one story, did not violate the covenant and could be built.

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