Common Scheme – June 2014
COMMON SCHEME - When the owner of a subdivided tract conveys the various parcels in the tract by separate deeds and each contains restrictions, as part of a general plan of restrictions common to all the parcels and designed for their mutual benefit, mutual equitable servitudes are thereby created in favor of each parcel as against all the others. Bessette v. Guarino , 128 A.2d 839 (1957). This is true whether or not the common owner records a plat showing all the parcels or lots conveyed. This is also true where no Declaration of Restrictions is filed and where subsequent grantees have no mention of the original restrictions in their individual deeds. The subsequent grantees may not have actual notice of a restriction because of this, but they have constructive notice where the restrictions appear in other recorded deeds or in a recorded Declaration of Restrictions. Martellini v. Little Angels Day Care, Inc., 487 A.2d 838 (2004).
Needless to say, a title examination involving one of multiple parcels coming from a common grantor must include an examination of every deed for every parcel, no matter how numerous. If a number of deeds are found to contain the same restrictions, any subsequent title policy issued on the other lots should include a special exception for "Restrictions by common scheme, insofar as they may be applicable."
The restrictions also apply even though the parcel in question has been rezoned to allow usage prohibited by them. Farrell v. Meadowbrook Corp., 111 R.I. 747 (1973). In the Meadowbrook case, the developer had recorded a plat along with a Declaration of Restrictions limiting each lot to a single family dwelling (Garden City, Section No. 4, Cranston, RI). Most of the lots were 23,000 square feet in area. One of the recorded lots shown on the plat, however, was 11.7 acres. Subsequently, the developer obtained an Amendment of the Zoning Ordinance, allowing an apartment house to be built on that lot. The court found that even though the lot in question had been rezoned, the developer had intended a uniform development solely devoted to single-family dwellings and that the zoning ordinance could not destroy the force and effect of a restrictive covenant. The court noted that the lot in question was numbered and that the plain language in the restrictions meant what it said.
However, it should be mentioned that there is an exception to this rule. In those cases where there has been a dramatic change in the neighborhood and the conditions in and around the subdivided plat, and those changes actually defeat the purpose of the original plat restrictions, the court may find that they no longer apply. Duffy v. Mallo , 121 R.I. 480 (1979). A title agent should never insure over the restrictions, however, without a specific final court adjudication that they are no longer binding.
Generally, a finding by the court that a common scheme was intended by the common grantor, enables any lot owner to enforce the restrictions against any other lot owner. In addition, Rhode Island allows the court to determine the common grantor's intention from the facts and circumstances surrounding the development of the plat, as well as from the substance of the restrictions set out in the conveyances. Clemence v. Mazika, 73 R.I. 254 (1947) The substance, meaning and interpretation of each restrictive covenant, is decided on a case-by-case basis.Hanley v. Misischi , 302 A.2d 79 (1973). In that case, the restrictions involved stated that each lot on the plat was to be used solely and exclusively for residential purposes. The court ruled that the developer of some bordering back land could not put an access street through one of the residential lots.
All these considerations mean that a court can find that a common scheme was intended, even though the common grantor did not include the restrictions in every conveyance and he has changed his plans. If a common grantor retains a parcel of land bordering the plat, the lot owners may attempt to impose their restrictions on the remaining land.