Avery v. Medina

Conn. Appellate Court, AC 36326, July 8, 2014: Stone wall is “permanent structure”

At issue was whether a stone wall erected by Medina, the defendant, at a location where a restrictive covenant between private parties prohibited construction of any “permanent structure,” was a permanent structure in violation of the covenant. A lower court agreed with Medina that the prohibition on permanent structures was ambiguous and, even though the wall is a structure that “is large in size, is undoubtedly heavy and is immobile” it was not permanent. The appeals court disagreed. It held that the phrase “permanent structure” was not ambiguous, and found that the wall is a permanent structure within the meaning of this restrictive covenant.

The court concluded that the term “permanent structure” has a common, natural and ordinary meaning and “equates to a structure that is not meant to be temporary or transient, but, rather, is meant to be fixed, lasting, and not readily abated.” The factors to be evaluated include the structure’s size, weight, durability, stability and mobility. The plaintiffs argued, and the court agreed, that even if the wall did not contain a concrete core, “gravity would affix this wall, with its pillars and fencing, to the ground.”

The case was remanded to the trial court for it to grant an injunction requiring Medina to remove all portions of the wall within the prohibited area. There were other controversies in this case, not relevant to this outcome.

Decision available at http://www.jud.ct.gov/external/supapp/Cases/AROap/AP151/151AP409.pdf.

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