Conditions subsequent are not favored in New Hampshire law, and where doubt exists a clause will be construed to create a covenant and not a condition
Defendant successor grantee appealed from an order of a trial court which found in favor of plaintiff grantors on their petition to clear their title and to restrain the grantee from discontinuing maintenance of a parking lot. The grantors owned and operated a restaurant adjacent to the land in question. The grantors conveyed the land to a really trust for the construction of a shopping center. The deed contained a restriction barring the use of property as a restaurant. The deed also reserved an easement in the grantors permitting them to use a parking lot on the land. The reservation required the grantors to pay an annual $75 maintenance fee. When the land was conveyed to the grantee, the fee had not been paid for a couple of years. The grantee demanded the sum, but returned it after it was tendered by the grantors. The grantee then filed an affidavit in the registry of deeds stating that the easement was void for the grantors' failure to pay the fee.
Were plaintiff grantors in default of an annual $75 fee which was disputed either as a covenant or a condition subsequent?
The court found that the grantors were not in default with regard to the fee, which the court construed as a covenant rather than a condition subsequent. Furthermore, the restaurant restriction was valid and binding on the grantee.
The court overruled the grantee's exception.