Davidson Brothers, Inc. v. D. Katz & Sons, Inc.

579 A.2d 288 (1990)

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Davidson Brothers, Inc. v. D. Katz & Sons, Inc.

New Jersey Supreme Court
579 A.2d 288 (1990)

SC
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Facts

Davidson Brothers, Inc. (Davidson) (plaintiff) operated a supermarket on a tract of land in downtown New Brunswick (George Street property) and later acquired a second supermarket about two miles away. The following year, Davidson closed the store on the George Street property because of lost sales to Davidson’s new grocery store. Davidson sold the George Street property to D. Katz & Sons, Inc. (Katz) (defendant), subject to a covenant that prohibited anyone from using the property for a grocery store. The New Brunswick Housing Authority (NBHA) subsequently acquired the George Street property and leased it to C-Town, provided that C-Town used it for a grocery store. Davidson sued Katz, NBHA, and C-Town (defendants) to specifically enforce the covenant in the deed to Katz. The trial court granted the defendants’ motion for summary judgment, holding that the covenant was unenforceable because the burden on the landowner did not run with the land. The New Jersey Superior Court, Appellate Division, affirmed on the alternative ground that the benefit to Davidson did not run with the land, because the prohibited use did not touch and concern the land. Davidson petitioned the New Jersey Supreme Court for certification.

Rule of Law

Issue

Holding and Reasoning (Garibaldi, J.)

Concurrence (Pollock, J.)

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