                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4942-13T1

LISA B. FREEDMAN and JEFFREY
C. ENDA,
                                         APPROVED FOR PUBLICATION
          Plaintiffs-Respondents,
                                            November 24, 2015
    v.
                                           APPELLATE DIVISION
MURRAY N. SUFRIN and ELLEN L.
SUFRIN,

          Defendants-Appellants,

    and

PRUDENTIAL FOX & ROACH REALTORS,
VAL NUNNENKAMP, JOHN DRAGANI, JAMES
L. GARDNER, MARCIA RUBENSTEIN GARDNER,
SURETY TITLE CORPORATION, O.C.
EQUITIES, METRO DEVELOPMENT, LLC,
JOSEPH ZERBO and WAYNE ZERBO,

          Defendants.

_______________________________________________________

          Argued October 27, 2015 – Decided November 24, 2015

          Before Judges Fisher, Rothstadt and Currier.

          On appeal from the Superior Court of New
          Jersey, Chancery Division, Camden County,
          Docket No. C-114-11.

          Joseph P. Grimes argued the cause for
          appellants   (Grimes   &    Grimes,   L.L.C.,
          attorneys; Mr. Grimes, on the brief).
            Hugh   A.  Keffer   argued   the  cause for
            respondents (Fidelity National Law Group,
            attorneys; Mr. Keffer, on the brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    In this appeal, defendants Murray and Ellen Sufrin argue

that the judge erred in granting summary judgment in favor of

their   neighbors,         plaintiffs       Lisa     B.   Freedman        and    Jeffrey    C.

Enda,     based      on      what       defendants        claim     is      an    erroneous

interpretation        of     a    restrictive        covenant       which       purports    to

limit, among other things, the removal of trees from plaintiffs'

property.        Because the covenant is unclear and ambiguous, we

affirm.

    The     parties'        cross-motions          for    summary    judgment       did    not

generate    any      material       factual       disputes.       The     record    reveals

that, on February 28, 2011, plaintiffs purchased a two-story,

single-family residence on Covington Lane in Voorhees pursuant

to a written contract that made no mention of a restrictive

covenant.       In   1996,       however,     a    predecessor       in     title    —    O.C.

Equities    —    purchased        the    property        and   obtained      a    deed    from

defendants       that      subjected      the      conveyance       to     the    following

restrictions:

            (1) No swimming pool shall be constructed on
            the property;




                                              2                                     A-4942-13T1
            (2) The garage and driveway of said property
            [shall] be constructed on the side of the
            property which does not abut sellers[']
            property;

            (3) The home to be constructed on the
            property [shall] be priced at a minimum of
            $275,000.00;

            (4) Any home constructed on the        property
            shall   retain   as   many   trees,     shrubs,
            understory plant life as possible.

            [51] The above restrictions will continue
            until such time as the sellers, Murray N.
            Sufrin and Ellen Sufrin, reside at [the
            abutting property].

            [6] Any transfer of property by sellers,
            Murray N. Sufrin and Ellen Sufrin, will void
            the restrictions.

In 1999, O.C. Equities sold the property to Metro Development,

which promptly sold the property to James and Marcia Gardner,

who later sold it to plaintiffs.           Although the covenants in

question were not memorialized in these later conveyances, we

assume for present purposes that plaintiffs had actual knowledge

of the restrictions in O.C. Equities' deed.2

     Once   plaintiffs   took   possession   of   this   heavily-wooded

property,   they   considered   removing   some   trees,   particularly


1
  We have inserted numbers for the last two unnumbered paragraphs
only for ease of reference later in this opinion.
2
  We note that the trial judge presumed plaintiffs did not have
knowledge of the restrictions when they purchased the property.
In our opinion, it makes no difference.



                                   3                           A-4942-13T1
those with exposed roots that they believed caused a tripping

hazard for one of their children, who has what they describe as

"a balance issue."    Controversy arose when defendants observed a

landscaper on plaintiffs' property marking trees for removal.

After   advising   plaintiffs   of    the    1996     covenant,   defendants

demanded that plaintiffs provide a landscaping plan for their

approval.     Plaintiffs     provided       an    arborist    report    and     a

landscaping plan; defendants rejected both.

     Consequently,   in    August    2011,       plaintiffs   commenced    this

quiet-title action in the Chancery Division.             The parties cross-

moved for summary judgment and, for reasons set forth in an oral

decision, the judge granted plaintiffs' motion.3 In appealing,

defendants argue that the test devised in Davidson Bros., Inc.

v. D. Katz & Sons, Inc., 121 N.J. 196 (1990), for determining the

enforceability of restrictive covenants on commercial property

should be applied here,4 and, also, that the judge erroneously




3
  An amended complaint joined prior property owners and realtors;
all those claims were later disposed of, rendering the summary
judgment in question a final and appealable order.
4
  We quickly dispense with defendants' initial contention —
raised for the first time on appeal — that Davidson controls.
That case involved the enforceability of a covenant that barred
use of property for a commercial purpose, a circumstance not
present here. In addition, we note that defendants concede the
restrictions in question are not part of a neighborhood scheme
that might require a different approach.       See Caullett v.
                                                    (continued)


                                     4                                 A-4942-13T1
determined     that    the   tree-removal       and    other    restrictions      were

personal covenants that did not run with the land. We find all

these    arguments       lacking     in       sufficient       merit     to   warrant

discussion in a written opinion, R. 2:11-3(e)(1)(E), and add

only the following brief comments.

    We reject defendants' contentions because the restrictions

they would impose on their neighbors do not meet the strict

construction standard imposed by the common law.                         As cogently

described by then Judge (later Justice) Sullivan:

           Restrictions on the use to which land may be
           put are not favored in law because they
           impair alienability.  They are always to be
           strictly construed, and courts will not aid
           one person to restrict another in the use of
           his land unless the right to restrict is
           made manifest and clear in the restrictive
           covenant.

           [Bruno v. Hanna, 63            N.J.     Super.      282,    285
           (App. Div. 1960).]

Although   Bruno      acknowledges    this      rule   of   strict      construction

"will    not   be     applied   to   defeat      the    obvious        purpose   of    a

restriction[,] . . . the meaning of a restrictive covenant will

not be extended by implication and all doubts and ambiguities

must be resolved in favor of the owner's unrestricted use of the

land."     Id. at 287.          This standard remains unchanged.                    See


(continued)
Stanley Stilwell & Sons, Inc., 67 N.J. Super. 111, 119 (App.
Div. 1961).



                                          5                                   A-4942-13T1
Berger v. State, 71 N.J. 206, 215 (1976); Cooper River Plaza E.,

LLC v. The Briad Grp., 359 N.J. Super. 518, 526 (App. Div.

2003); Steiger v. Lenoci, 352 N.J. Super. 90, 95 (App. Div.

2002).     Accordingly,        the   existence     of     ambiguities       does      not

preclude summary judgment, as would be the case when construing

a contract; to the contrary, in light of the test described in

Bruno, ambiguities invite summary judgment in this context.

    With these principles in mind, we turn to the particular

language employed to determine whether the alleged ban on tree

removal was "made manifest and clear."                    Bruno, supra, 63 N.J.

Super. at 285. We conclude that the covenant does not say what

defendants now argue it says, and that the covenant is, at best,

unclear.

    An        examination      of    the       fifth     paragraph,        in      fact,

demonstrates that its neighboring provisions long ago lost any

vitality once likely intended.             Defendants argue that this fifth

paragraph should be understood as declaring that the first four

provisions are to apply "so long as" defendants reside next

door; in fact, the paragraph expresses the opposite:                    "The above

restrictions      will   continue      until     such    time   as   the    sellers,

Murray   N.    Sufrin    and   Ellen    Sufrin,        reside   at   [the   abutting

property]" (emphasis added).           Because the most common meaning of

"until" is "up to the time of," the only logical meaning to be




                                           6                                    A-4942-13T1
attributed to this sentence is that the entire covenant became

irrelevant once defendants took up residence next door. Unless

we are to apply the standard of interpretation famously employed

by Humpty Dumpty,5 defendants' contention that "until such time"

should be translated as "so long as" must be rejected.6

     The   entirety    of   the    restrictive      covenant   suggests      its

application   only     to   O.C.    Equities,       the   developer    of     the

property, and supports the trial judge's determination that the

covenant was personal to O.C. Equities and would not apply to

future   owners.      Numerous     terms   reveal    this   intent    to    limit

application to the builder-owner. The second paragraph mandated

"construct[ion]" of the garage and driveway to the non-abutting

side of the property; the third paragraph imposed a dollar value

5
  "'When I use a word,' Humpty Dumpty said, in rather a scornful
tone, 'it means just what I choose it to mean — neither more nor
less.' 'The question is,' said Alice, 'whether you can make
words mean so many different things.' 'The question is,' said
Humpty Dumpty, 'which is to be master — that's all.'"      Lewis
Carroll, Through the Looking Glass, ch. VI (1871).
6
  Although the record is silent as to when defendants first
resided in the neighboring home, it seems likely they actually
were present when they imposed the restrictive covenant on O.C.
Equities. That particular circumstance, however, would not
suggest the wording of the fourth paragraph should be construed
in some way other than the manner required by the common,
everyday   meaning  of   the   words  actually   employed.  That
circumstance would only suggest that defendant Murray Sufrin —
an attorney and drafter of the restrictions — did not convey his
intentions with the clarity needed to bind O.C. Equities, let
alone successors in title, who could not be charged with
knowledge of the identities of the next door residents.



                                      7                                A-4942-13T1
on "[t]he home to be constructed on the property"; the fourth

paragraph — the provision directly implicated here — required

the retention of "as many trees . . . as possible" for "[a]ny

home constructed" on the property (emphasis added). Indeed, the

language of the fourth paragraph — retain "as many trees . . .

as   possible"    —   cannot    be    logically   understood     as    expressing

anything more than O.C. Equities' stipulation to leave as many

trees standing during the construction of the residence as it

could.   Viewing      these     restrictions      as    a    whole,    the     only

reasonable     interpretation         limits   their     application     to    the

builder of the residence and not any future owners.

      Upon    completion       of    construction,     the   language     of   the

covenant lost any sensible meaning for subsequent owners.                       For

example, even when interpreted as defendants urge, the covenant

does not purport to prohibit all tree removal; it expresses only

that "as many trees . . . as possible" be retained.                     What does

that mean?       Does it mean that plaintiffs must retain as many

trees    as   defendants       might     possibly      require   for     whatever

unexpressed purpose they might have had in mind?                      Or as many

trees as may be possibly retained, but perhaps giving the owners

some ability to remove trees in order to keep the premises safe

for occupants and visitors?              These questions are unanswerable

because the covenant provides no clue as to what defendants were




                                         8                               A-4942-13T1
attempting to preserve by extracting O.C. Equities' agreement to

retain     as     many   trees   as    possible      when     constructing    the

residence.        The common law's standard of strict construction

bars looking elsewhere7 for a clear understanding.8

      Because the restrictive covenant: has no application once

defendants occupied the neighboring property, an event that long

ago occurred; can only reasonably be understood as binding O.C.

Equities, an earlier owner that constructed the residence; and

has   no   rational      application   to     the   current   owners'   use   and

enjoyment of their property, we affirm the summary judgment that

declared        the   restriction      null    and    void     and   henceforth

unenforceable.

      Affirmed.




7
  Defendants allude to Joyce Kilmer's Trees (1913) for guidance.
Trees may be worthy of our admiration and wonder but does that
mean all trees must be left standing until they fall of their
own accord?
8
  Even if the fourth paragraph imposed some sort of aesthetic
guideline for the purpose of preserving a wooded view for
defendants, no court could safely enforce that standard. See
Ginsburg v. White, 139 N.J. Eq. 271, 273-74 (E. & A. 1947)
(recognizing that "[a] contract which is incomplete, uncertain
or indefinite in its material terms will not be specifically
enforced in equity").



                                        9                               A-4942-13T1
