Relating to Real Estate
Addition Built in Setback Must be Razed
The Circuit Court for Baltimore County ordered that Friends of Lubavitch, Inc. must remove a 6,600 square foot addition to a house it owns in Towson by March 1, 2018, because the improvements are located in a setback area proscribed in a 1950 deed. Zoll v. Friends of Lubavitch, Inc., No. 03-C-16-008420 (Cir. Ct. for Baltimore Cnty., April 13, 2017).
Friends of Lubavitch, Inc. purchased 14 Aigburth Road on September 29, 2008 when it was a 2,000 square foot ranch house to establish a Chabad, where Rabbi Mendel Menachem Rivkin would reside with his family and serve students of Towson University and Goucher College. The title report and title insurance policy issued at that time showed the existence of a deed from 1950 in the chain of title that provided that any dwelling erected at 14 Aigburth must “... have a setback equal to one-half of the total setbacks of the two houses erected on the lots adjoining to the East and West thereof, measured to the centre of said houses, exclusive of porches.” The representatives of Friends of Lubavitch claimed to have not been aware of this restriction until July 2016.
Friends of Lubavitch obtained a building permit in May, 2016, purportedly to allow for the construction of additional living space for Rabbi Rivkin and his family. Excavation for the improvements began in June 2016. Robin Taylor Zoll, who lives next door, engaged a lawyer who did a title search and uncovered the 1950 setback restriction, and Ms. Zoll told Rabbi Rivkin of this in July 2016.
On August 12, 2016, Ms. Zoll and the Aigburth Manor Association of Towson filed suit seeking an injunction to stop the construction. The plaintiffs’ request for a preliminary injunction was denied, and during the course of the litigation, Friends of Lubavitch continued the construction of the addition. Based on the setbacks of the houses on either side of 14 Aigburth Road and the provisions of the 1950 deed, virtually the entirety of the addition as completed is located within the setback area.
Judge Susan Souder of the Circuit Court for Baltimore County noted in her opinion dated April 7, 2017 that the 1950 deed imposed a restrictive covenant on the property, and that the terms of the restriction were unambiguous. The judge then observed that the property owner did not have to have actual notice of the covenant for it to be enforceable; recordation of the deed provided everyone with an interest in the property with constructive notice of the existence of the covenant. Moreover, by virtue of the inclusion of the 1950 deed in the title insurance policy that was issued when Friends of Lubavitch purchased the property, the court found that Friends of Lubavitch had actual knowledge of the covenant in 2008.
The court held that the improvements violated the setback covenant. The court rejected the claim of Friends of Lubavitch that the plaintiffs’ claims were barred by laches. The court found that Ms. Toll acted quickly in engaging counsel, obtaining a title search, and bringing the lawsuit. Further, the court found that Friends of Lubavitch assumed the risk of harm when it decided to proceed with the construction after receiving notice of the covenant from Ms. Zoll.
Friends of Lubavitch argued that the 1950 deed actually contains four covenants, and that the plaintiffs should not be able to attempt to enforce only one of them. Judge Souder wrote that enforcement of one covenant does not affect others, and that there had been no abandonment of the setback covenant by the plaintiffs, which could only occur by a clear, unequivocal, and decisive act.
The court found that Ms. Zoll had standing to bring the action. Ms. Zoll lives next door to the subject property. and she testified that she used to sit on her porch and enjoy the breeze, trees, and sun, but now her view from her porch is a three-story brick wall. The court did not decide whether the Aigburth Manor Association had standing and concluded that it was not necessary to do so because it asserted the same claims as Ms. Zoll.
For questions, please contact Ed Levin (410) 576-1900.