Madison Title Agency | Madison 1031 | LeaseProbe/Real Diligence | Madison SPECS


By Isabel Baumgarten, Esq., Associate General Counsel, MCRES


Issue
Can a property owner add a dock to a common area or does that constitute violation of a community’s restrictive covenant?

Court Decision
It depends on interpretation of the restrictive covenant.  In Tedeschi v Lake George Park Comm’n, the New York Supreme Court, Warren County granted a Motion for Summary Judgment holding that an articulating dock did not violate this Lake George community’s restrictive covenant.  The restrictive covenant did not allow owners in the community to “erect or move any building or obstruction on” common areas that owners had an undivided interest in, including the main dock.  Defendants obtained the appropriate permission to erect an articulating dock off the boat slip connecting to the main dock from the community association.  The articulating dock was similar to other finger docks that were added by other owners, except that it was movable and could be lifted out of the water during the winter.  Plaintiff argued that the articulating dock violated the restrictive covenant because it was a “building or obstruction”.  The court disagreed.  Relying on the basic principle that the “law favors free and unencumbered use of real property,” the court found that the restrictive covenant should be construed strictly against the Plaintiff.  It found that the movable piece of the dock could not be construed as a “building” or an “obstruction” of the main dock and therefore the restrictive covenant was not violated.

Impact
Property owners and prospective purchasers should review restrictive covenants carefully before making any improvements on the property, keeping in mind that the law will generally favor the least restrictive interpretation of the covenant to preserve the property owner’s right to use and enjoyment of the property.