Deed restrictions embrace a variety of controls, such as permissible uses, aesthetics, density limitations, setback and other “bulk” restrictions. Attorneys typically are confronted with such covenants when representing a disgruntled neighbor threatening to seek or avoid enforcement. A burdened property owner may wish to test the enforceability of a covenant even when there is no dispute. Generally, New Jersey courts will not hesitate to enforce deed restrictions even when, as a result, structures must be removed. Blaine v. Ritger, 211 N.J. Super. 644 (App. Div.), certif. den. 105 N.J. 546 (1986). However, since a deed restriction constitutes an agreement, grounds may be available to preclude enforcement. Weinstein v. Swartz , 3 N.J. 80 (1950). Of course, like any claim or affirmative defense, the burden of proof rests upon the party asserting it. Italian Fisherman, Inc. v. Commerce Union Assur. Co., 215 N.J. Super. 278, 283 (App. Div. 1987).
This article briefly touches upon various grounds which practitioners should explore when faced with the need to prevent the enforcement of a deed restriction.
