Wykeham Rise, LLC v. Federer

****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** WYKEHAM RISE, LLC v. ERIC A. FEDERER ET AL. (SC 18653) Norcott, Palmer, Zarella, McLachlan, Eveleigh, Harper and Vertefeuille, Js. Argued February 2—officially released June 19, 2012 Linda L. Morkan, with whom were Brian R. Smith and, on the brief, Joel C. Norwood, for the appellants (defendants). William C. Franklin, for the appellee (plaintiff).  Opinion HARPER, J. The principal issue in this appeal con- cerns the circumstances in which, as a matter of law, a covenant restricting the use of land may be deemed unenforceable between nonparties to the initial cove- nant agreement. The defendants, Eric A. Federer and Wendy R. Federer, appeal1 from the judgment of the trial court granting summary judgment in favor of the plaintiff, Wykeham Rise, LLC, with respect to the plain- tiff’s declaratory judgment action seeking to establish the unenforceability of certain restrictive covenants contained in a deed to its property, and with respect to the defendants’ counterclaims seeking to quiet title to the plaintiff’s property and to enforce the restrictive covenants. We conclude that summary judgment was inappropriate because, contrary to the trial court’s con- clusions, the covenants at issue in this case are not void as a matter of law and questions of material fact exist as to whether the defendants are entitled to enforce them. The following undisputed facts are relevant to this appeal. Prior to 1990, the parcel of land now owned by the plaintiff that is the subject of this appeal was owned by the Wykeham Rise School (school). An adjacent property, now owned by the defendants, was then owned by Wendy Federer’s father, Bertram Read, a member of the school’s board of trustees and past chair- man of that board. In 1990, the school sold its property (school property) to a limited liability corporation sub- ject to a set of restrictive covenants, one of which pro- vides that the grantee ‘‘will not construct any buildings or other structures or any parking lots on that area of the above described premises lying within 300 feet, more or less, at all points, northerly from the most southerly boundary of said premises, which area is now commonly known as the ‘Playing Field.’ ’’ The deed further provides that ‘‘[t]he foregoing covenants and agreements shall be binding upon the [g]rantee, its suc- cessors and assigns, shall inure to the benefit of the [g]rantor, its successors and assigns, and shall run with the land.’’ The covenants do not expressly reference any third parties, and the school did not own any prop- erty other than the parcel being sold. The year after the conveyance, the school was administratively dis- solved by the secretary of the state. Over the following seventeen years, the school property was sold twice, first to another limited liability corporation and ulti- mately to the plaintiff in 2008, pursuant to a deed that expressly referenced the covenants.2 During the period in which the school property was owned by the plaintiff’s predecessor in interest, Read sold the adjacent property to the defendants. Ten years after that sale, and three years before the plaintiff pur- chased the school property, Wendy Federer and the chairman of the now defunct school’s board of trustees executed a document purporting to assign the school’s rights under the restrictive covenants to Wendy Federer in exchange for consideration of $500. Several years later, Wendy Federer also executed and recorded a ‘‘Declaration of Beneficial Ownership’’ claiming the right, along with Eric Federer and their heirs and assigns, to the benefit of the covenants as owners of the adjacent property. The present action arose after the plaintiff sought permits to develop the school property in a manner inconsistent with the terms of the restrictive covenants. The defendants objected to the issuance of the permits and brought an administrative appeal after one such permit was issued, citing the restrictive covenants.3 The plaintiff then sought a judgment declaring that the cove- nants at issue ‘‘are null and void, are of no legal effect, and are accordingly unenforceable as to the plaintiff, its successors, and assigns . . . .’’ The defendants brought counterclaims seeking, inter alia, to have the covenants declared enforceable, to enjoin the plaintiff from violating the covenants, and to receive monetary damages. The defendants also asserted special defenses of waiver and unclean hands to the plaintiff’s declara- tory judgment action. The plaintiff then moved for summary judgment with respect to both its declaratory judgment action and the defendants’ counterclaims, claiming that the covenants are void and that the school’s transfer of its rights under the covenants similarly is void. With respect to the covenants, the plaintiff contended principally that they neither fell within the three categories of restrictive covenants permitted by law nor satisfied the require- ment that there be ‘‘unity of title’’ between the burdened and the benefited parcels of land at the time of covenant formation. The plaintiff further asserted that any cove- nant benefits that did exist did not pass to the defen- dants, both because the covenants do not run with the land and because the school did not validly assign the benefits to the defendants. The defendants objected to the plaintiff’s motion, claiming that, as a matter of law, the covenants are not invalid because the abolition of the unity of title doctrine expands the types of cove- nants recognized by law and that, consequently, they are entitled to enforce the covenants as third party beneficiaries. They further claimed that there are mate- rial issues of fact as to, inter alia: whether the school conveyed its right to enforce the restrictive covenants, whether the covenants benefit the defendants’ property and whether the school intended to confer such a bene- fit. In support of their claimed third party beneficiary status, the defendants submitted several affidavits, including one from the chairman of the school’s board of trustees at the time the covenants were created attesting that ‘‘[Read] . . . asked me if the [r]estrictive [c]ovenants could be imposed, in part, to benefit his property. I asked the other members of the [board of trustees] if this was acceptable and we, on behalf of the [s]chool, agreed to propose them in negotiations, as long as the imposition of the [r]estrictive [c]ovenants would not adversely affect the sale to [the buyer]. [The buyer] did not object, so the [r]estrictive [c]ovenants were included in the final deed.’’ On the basis of the pleadings and affidavits submitted by both parties, the trial court rendered judgment in favor of the plaintiff. The court concluded that the ‘‘the restrictive covenants are null, void and of no legal effect because they were void at the time they were first conveyed in 1990,’’ relying in significant part on the fact that ‘‘the covenants do not fall within any of the three classes [of restrictive covenants] recognized by the appellate authority of this state.’’ The court further concluded that the facts did not establish that the covenants were intended to bene- fit the defendants’ property and that the covenants were of a personal nature that did not run with the land. In light of these conclusions, the court did not reach the issue of whether the school could assign its rights under the covenants after its administrative dissolution. The trial court also rejected the defendants’ equitable spe- cial defenses. The defendants’ appeal followed. On appeal, the defendants contend, inter alia, that questions of material fact bear on the proper interpreta- tion of the restrictive covenants, that this court’s deci- sion in Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 735 A.2d 798 (1999), abolished the unity of title doctrine so that a covenant may exclusively benefit a third party, and that the covenants run with the land. The defendants also claim that the trial court improperly rejected their equitable special defenses of waiver and unclean hands. The plaintiff, in response, asserts that no material facts bear on the interpretation of the covenants, that the covenants do not fall into any of the three categories of restrictive covenants rec- ognized by Connecticut law, and that unity of title remains a prerequisite for the creation of covenants. We conclude that summary judgment was improper because the covenants were not void upon creation as a matter of law and questions of material fact must be resolved to determine whether the covenants can be enforced by the defendants against the plaintiff. Addi- tional facts will be set forth as necessary. The standard governing our review of a decision to render summary judgment is well established. ‘‘Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant [the plaintiff’s] motion for summary judgment is plenary.’’ (Citation omitted; internal quotation marks omitted.) Plato Associates, LLC v. Environmental Compliance Services, Inc., 298 Conn. 852, 862, 9 A.3d 698 (2010). To determine whether summary judgment was proper in this case, we proceed by outlining the present state of the law as it pertains to the creation and enforce- ment of restrictive covenants, with the intent of both clarifying the issue before us and resolving some appar- ent confusion that has recently arisen in the lower courts. Specifically, we address the considerations that bear on three essential questions: were the covenants properly created; if properly created, can they be enforced against the plaintiff (the allegedly burdened party); and can they be enforced by the defendants (the allegedly benefited parties)? In considering these questions, we bear in mind that, ‘‘[i]n construing a deed, a court must consider the lan- guage and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties. . . . In arriving at the intent expressed . . . in the lan- guage used, however, it is always admissible to consider the situation of the parties and the circumstances con- nected with the transaction, and every part of the writ- ing should be considered with the help of that evidence. . . . The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in light of the surrounding circumstances.’’ (Internal quotation marks omitted.) Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 140–41. I The threshold question presented by this case— whether the trial court properly concluded, as a matter of law, that the covenants were not properly created— can be answered in relatively straightforward fashion. First, because the covenants were created as part of a conveyance of land, they are subject to the formal writ- ing and recording requirements set forth in General Statutes §§ 47-54 and 47-10,5 respectively. See 1 Restatement (Third), Property, Servitudes § 2.7 (2000) (‘‘[t]he formal requirements for creation of a servitude are the same as those required for creation of an estate in land of like duration’’).6 To be valid, covenants also must not violate the public interest. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 19, 68 S. Ct. 836, 92 L. Ed. 1161 (1948) (racially restrictive covenants judicially unen- forceable); Lampson Lumber Co. v. Caporale, 140 Conn. 679, 683, 102 A.2d 875 (1954) (‘‘The test of the validity of [a covenant in restraint of trade] is the reason- ableness of the restraint imposed. . . . To meet this test successfully, the restraint must be limited in its operation with respect to time and place and afford no more than a fair and just protection to the interests of the party in whose favor it is to operate, without unduly interfering with the public interest.’’ [Citation omitted; internal quotation marks omitted.]); 1 Restatement (Third), supra, § 3.1 (2), (3), (4) and (5) (covenant or other servitude invalid if it unreasonably burdens funda- mental constitutional right, imposes unreasonable restraint on alienation or trade or is unconscionable). In the present case, no formal or public policy defects in the formation of the covenants at issue have been alleged, nor are any such invalidating features apparent on the face of the covenants. It is therefore clear that summary judgment could not properly have been ren- dered on the ground that the covenants are inher- ently invalid. The trial court, in reaching the opposite conclusion, relied in significant part on its determination that ‘‘the covenants do not fall within any of the three classes [of restrictive covenants] recognized by the appellate authority of this state.’’ Although the notion that Con- necticut courts ordinarily recognize only three ‘‘classes’’ of restrictive covenants has some support in recent appellate case law; Max’s Place, LLC v. DJS Realty, LLC, 123 Conn. App. 408, 414, 1 A.3d 1199 (2010); this idea misconstrues our case law and muddies the already murky law of servitudes. The first articulation of a three category taxonomy of covenants in this state occurred in 1928, when this court was asked to determine whether one property owner could enforce a covenant appearing in another property owner’s deed,7 when both properties had been conveyed by a common grantor. See Stamford v. Vuono, 108 Conn. 359, 143 A. 245 (1928). Relying on New York case law, this court observed: ‘‘For our present purposes restrictive covenants of this character may be divided into three general classes: First, when there are mutual covenants in deeds exchanged between owners of adjoining lands; second, when under a general development scheme the owner of property divides it up into building lots to be sold under deeds containing uniform restrictions, and third, where a grantor exacts covenants from his grantee pre- sumptively or actually for the benefit and protection of his adjoining land which he retains. Korn v. Campbell, 192 N.Y. 490, 495, 85 N.E. 687 [1908].’’ Stamford v. Vuono, supra, 364. Contrary to the trial court’s interpre- tation in the present case, this classification was not intended to limit the varieties of covenants that lawfully could be created, but was rather a shorthand device for determining whether a lawfully created covenant subsequently could be legally enforced between parties other than the covenant’s original signatories. That the categories articulated in Stamford relate to the enforce- ability by and against strangers to the original deed rather than the initial validity of covenants is confirmed by reference to Korn, the New York case upon which Stamford relies. In that case, the Court of Appeals of New York concluded that, where a covenant did not fall into these three categories, ‘‘[t]he original covenant, which may be good in favor of [the initial grantor/ beneficiary] or his assigns as against any grantee of [the original grantee] in this tract, is not enforceable as between such grantees.’’ (Emphasis added.) Korn v. Campbell, supra, 497. The validity of covenants that do not fall within the categories contemplated by Stamford is well illustrated by this court’s decision in Hartford National Bank & Trust Co. v. Redevelopment Agency, 164 Conn. 337, 321 A.2d 469 (1973). In that case, a trust provided money for the purchase of land, contingent on the purchaser covenanting not to develop the land in a manner prohib- ited by the terms of the trust. Id., 338–39. Although the covenant did not fall within the categories identified in Stamford because it did not create a benefit in an identifiable parcel of land, the court did not reject the covenant as invalid. Instead, the court recognized it to be a valid restrictive covenant creating a benefit not tied to ownership of land: ‘‘[I]t seems clear that what the restrictive covenants did create for the benefit of the plaintiff trustee is an easement in gross . . . .’’8 Id., 341. We also take this opportunity to clarify, contrary to the plaintiff’s assertion, that a person need not simulta- neously own both the benefited and the burdened par- cels of land in order to create a valid covenant—that is, ‘‘unity of title’’ is not a prerequisite for covenant creation.9 Although we recognize that the Appellate Court has recently indicated that such a requirement does exist; Max’s Place, LLC v. DJS Realty, LLC, supra, 123 Conn. App. 414–15; the analysis underlying this authority is misguided, in that it improperly conflates the rules governing easements and covenants and fails to properly apply this court’s abolition of the unity of title doctrine even in the context of easements. This court’s limited embrace of the unity of title requirement can be traced to Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725 (1968), wherein the court held that an easement could be created only if one person simul- taneously owned both the right-of-way on the servient estate and the dominant estate benefited by the way. In Bolan v. Avalon Farms Property Owners Assn., Inc., supra, 250 Conn. 144–45, the court expressly overruled Curtin, holding that ‘‘the unity of title doctrine should be abandoned and that the intent of the deed creating an easement should be effectuated even if no unity of title exists between the servient estate and the dominant estate the easement is intended to serve.’’ Contrary to the assumption of the Appellate Court in Max’s Place, LLC, and the parties in the present case, Curtin did not apply the unity of title doctrine to covenants or indicate that the doctrine would apply in such circum- stances, and we are aware of no other authority for the proposition that such a requirement governs the creation of covenants in Connecticut.10 Indeed, every other appellate case that had applied the doctrine before its abolition in Bolan had done so in the contexts of easements or similar rights-of-way. See, e.g., Branch v. Occhionero, 239 Conn. 199, 202, 681 A.2d 306 (1996); Carbone v. Vigliotti, 222 Conn. 216, 217, 610 A.2d 565 (1992); Stankiewicz v. Miami Beach Assn., 191 Conn. 165, 170, 464 A.2d 26 (1983). Moreover, even if the rule in Curtin did extend to covenants, this court’s abandonment of that rule in Bolan would by the same logic necessarily apply to covenants as well.11 II Having determined that summary judgment could not properly have been granted on the ground that the cove- nants are inherently invalid, we address the possibility that summary judgment was nonetheless appropriate on the ground that the covenants are unenforceable. More precisely, we consider whether the covenants, presumably enforceable as between the original cove- nanting parties, remain effective as between the parties in the present case, who are both strangers to that initial agreement. For purposes of clarity, we divide our analysis of enforceability into two parallel inquiries, outlining on the one hand the considerations governing whether the burdens of the covenants pass to the plain- tiff in this case, and on the other hand whether the covenants’ benefits pass to the defendants. A The first question, whether the plaintiff can properly be burdened by the covenants at issue, implicates both principles of law and considerations of equity.12 Our inquiry begins with consideration of whether the bur- dens are to be characterized as ‘‘running with the land’’ (appurtenant) or as personal (in gross)—that is, whether they apply to the burdened property itself or rather to the person of the initial grantee. As we later explain, in the present case the covenants may be enforced at law only if they run with the land such that the plaintiff acquired the school property subject to the covenants. Even if the covenants do not run with the land, however, we also must consider whether the plain- tiff may nonetheless be subject to them as a matter of equity. We conclude that the covenant burdens in the present case are likely enforceable against the plaintiff both at law and in equity. 1 Whether the covenants’ burdens run with the land is, primarily, a question of the parties’ intent. Carlson v. Libby, 137 Conn. 362, 367, 77 A.2d 332 (1950) (‘‘[w]hether a promise with respect to the use of land is a covenant real as distinguished from a personal covenant depends upon the intent of the parties to the promise, to be determined in the light of the attendant circumstances’’);13 see Pulver v. Mascolo, 155 Conn. 644, 649, 237 A.2d 97 (1967) (‘‘[i]n the determination of the meaning in which words in a restrictive covenant are used, the controlling factor, when discovered, is the expressed intent’’). The presence or absence of express words of succession—such as ‘‘heirs’’ or ‘‘assigns’’— offers strong, though not conclusive, evidence of whether the parties intended to bind future owners of the land. Kelly v. Ivler, 187 Conn. 31, 40, 42, 450 A.2d 817 (1982) (where servitude ‘‘does not contain words of limitation, i.e., heirs and assigns, we would ordinarily presume that a mere easement in gross was reserved,’’ but this presumption may be rebutted by circumstan- tial evidence).14 The intent of the parties, however, is not dispositive, insofar as obligations that are inherently personal can- not be made appurtenant to the land. Thus, ‘‘[t]he use of words of succession binding the ‘heirs and assigns’ of the grantee of restricted land does not in itself cause the burden to run if the nature of the restriction is not one which could run with the land. . . . It is well set- tled that a covenant personal in its nature and relating to something collateral to the land cannot be made to run with the land so as to charge the assignee by the fact that the covenantor covenanted on behalf of himself and his assigns.’’15 (Citation omitted.) Pulver v. Mascolo, supra, 155 Conn. 650–51. On the other hand, ‘‘[i]f [a promise] touches the land involved to the extent that it materially affects the value of that land, it is generally to be interpreted as a covenant which runs with the land.’’16 Carlson v. Libby, supra, 137 Conn. 367. With respect to the relative strength of these competing con- siderations, moreover, this court has long held that a restrictive covenant ‘‘will not be inferred to be personal when it can fairly be construed to be appurtenant to the land . . . .’’17 Bauby v. Krasow, 107 Conn. 109, 114, 139 A. 508 (1927). In addition to these considerations, one final formal requirement also potentially bears on the question of whether a covenant’s burdens may be said to run with the land so as to bind a stranger to the covenant. Com- mon-law doctrine dictates that covenants may run with the land only if they are conveyed along with some other interest in land. As this court previously has held, relying on an earlier Restatement of Property, ‘‘[t]he burden of a covenant will run with land only when the transaction of which the covenant is a part includes a transfer of an interest in land which is either benefited or burdened thereby, or the covenant is made in the adjustment of the mutual relationships arising out of the existence of an easement held by one of the parties in the land of the other. [5 Restatement, Property § 534 (1944)].’’18 Carlson v. Libby, supra, 137 Conn. 368.  2 Alongside the legal rules governing whether the restrictive covenants in the present case run with the land, long-standing equitable principles applicable to restrictive covenants provide an important, and inde- pendent, framework for determining whether the cove- nants’ burdens may be enforced as a matter of equity. This court has long recognized that ‘‘[t]he question whether [a restrictive] covenant runs with the land is material in equity only on the question of notice. If it runs with the land, it binds the owner whether he had knowledge of it or not. If it does not run with the land, the owner is bound only if he has taken the land with notice of it. In Tulk v. Moxhay [2 Phil. Ch. 774, 777, 41 Eng. Rep. 1143 (1848)] the leading case upon this question, the court said . . . ‘The question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his ven- dor, and with notice of which he purchased.’ The deci- sions proceed upon the principle of preventing one having knowledge of the just rights of another from defeating such rights, and not upon the theory that the covenants enforced create easements or are of a nature to run with the land.’’ Bauby v. Krasow, supra, 107 Conn. 112. Therefore, under the rules of equity, if the plaintiff took the property in question with notice that it is burdened by restrictive covenants, it may be bound in equity to those burdens, regardless of whether the burdens run with the land. 3 Turning to the summary judgment rendered in the plaintiff’s favor in the present case, we cannot say as a matter of law that the burdens of the covenants at issue in this case do not run with the land. Indeed, there is strong evidence to the contrary: the covenants were formally created as part of a transfer of land; they explicitly provide that they are ‘‘binding upon the [g]rantee, its successors and assigns, shall inure to the benefit of the [g]rantor, its successors and assigns, and shall run with the land’’; and they appear on their face to relate to the land and not to impose any conceivable burden on the initial grantee independent of its owner- ship of the land. We recognize that circumstantial facts may emerge casting doubt on the apparent intent of the covenanting parties to create burdens appurtenant to the land; however, such determinations are for the finder of fact to make with the benefit of evidence introduced at trial. Even if the covenants did not meet all the require- ments at law for the burden to run with the land, the issue of enforceability also turns on the possibility of an equitable remedy. In the present case, there is uncon- tested evidence indicating that the covenants at issue restrict the plaintiff from using the land in certain ways, rather than requiring affirmative action by the plaintiff, a burden that could not be enforced in equity. There is also uncontested evidence that the plaintiff knew of these covenants at the time of purchase. Although fur- ther facts may be uncovered that preclude the plaintiff from being burdened by the covenants, at this point it cannot be said as a matter of law that those burdens do not apply to the plaintiff, either at law or in equity. B Looking to the other side of the equation, we now outline the conditions that must be met in order for the defendants in the present case to potentially enforce the covenants against the plaintiff, such that summary judgment could not have been rendered on this basis. The defendants claim the right to enforce the covenants as the successors or assigns of the covenants’ original beneficiary or beneficiaries. We must therefore con- sider the covenants’ benefits at two points in time: first, looking to the time of the covenants’ creation, we deter- mine the intended beneficiary or beneficiaries and the type of benefit or benefits created; second, looking to the present time, we determine whether the defendants could obtain the right to those benefits by way of assign- ment or devolution. As we previously have noted in our recitation of the procedural history of this case, the trial court decided that it was not necessary to reach the plaintiff’s claim that the rights to enforce the cove- nants had not been validly assigned to the defendants. We conclude that the defendants are not precluded from enforcing the covenants as a matter of law and that material questions of fact exist regarding whether they may enforce the covenants here. As with covenant burdens, covenant benefits may be appurtenant (directly benefiting the land) or in gross (accruing to a person independent of ownership of land) and may be held by the signatory to the covenant as well as third parties that the parties to the covenant intended to so benefit. The covenant benefits in the present case, at the time of their creation, thus may conceptually be described in one or more of four ways: (1) the benefits inured to the school as the owner of a piece of land; (2) the benefits inured to the school independent of its ownership of land; (3) the benefits inured to Read, Wendy Federer’s father, a third party beneficiary, as owner of the land adjacent to the school; and (4) the benefits inured to Read independent of his ownership of land. Under the circumstances of this case, we focus on scenarios two and three, leaving the relatively implausible scenarios represented by one19 and four20 to the side. We consider each in turn along with the related question of whether the defendants properly could have obtained those benefits. 1  We consider first whether the benefits of the cove- nants inured to the school in a manner that is indepen- dent of its ownership of a particular parcel of land. It is clear that these benefits in gross may validly be cre- ated. See Hartford National Bank & Trust Co. v. Rede- velopment Agency, supra, 164 Conn. 341. A further question potentially arises regarding whether the right to such benefits may be transferred or assigned. Although this court previously has not addressed this specific question, related case law indicates that such assignments properly can be made, if consistent with the covenanting parties’ intent. Assignability of rights is clearly favored with respect to contracts generally. Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 267, 757 A.2d 526 (2000) (‘‘[o]ur analysis . . . begins by emphasizing that the modern approach to contracts rejects traditional common-law restrictions on the alienability of contract rights in favor of free assignabil- ity of contracts’’); see also Rossetti v. New Britain, 163 Conn. 283, 291, 303 A.2d 714 (1972) (clarifying that whereas obligations under personal service contracts cannot be delegated, rights under such contracts may be assigned). We find this approach generally appro- priate to covenant rights held in gross; however, recog- nizing that the burdens of covenants typically endure far longer than those of contracts, we add the important caveat that covenant benefits (or burdens) in gross may not be transferred if doing so would be inconsistent with the intent of the parties. This proviso accords with the Restatement (Third), which distinguishes between the general class of freely alienable covenant benefits in gross and a narrower class of ‘‘personal’’ covenants that may not be transferred.21 1 Restatement (Third), supra, § 4.6. Per the Restatement (Third), ‘‘[a] servitude benefit . . . is personal if the relationship of the par- ties, consideration paid, nature of the servitude, or other circumstances indicate that the parties should not rea- sonably have expected that the servitude benefit would pass to a successor to the original beneficiary.’’22 Id., § 4.6 (2). All benefits in gross that do not qualify as personal are treated like other property rights and may freely be transferred.23 Id., § 4.6 (1) (c); 2 Restatement (Third), supra, § 5.8 (1) (‘‘[b]enefits in gross are prop- erty interests that are transferred by assignment or other conveyance effective to transfer an interest in land, and otherwise devolve as property to their own- ers’’). Accordingly, under this rubric, if the benefits were intended to benefit the school, and the parties did not intend them to be nonassignable, the school could validly assign those benefits to the defendants. 2 Turning to the alternative plausible interpretation of the covenants in the present case, we next consider whether the defendants may enforce the covenants on the theory that Read, as the owner of the land adjacent to the school property, was the intended third party beneficiary of the covenant between the school and the initial buyer of the school property and that, by virtue of their purchasing the benefited parcel of land, the right to enforce the covenants devolved to the defendants. The third party beneficiary doctrine provides that ‘‘[a] third party beneficiary may enforce a contractual obligation without being in privity with the actual par- ties to the contract. . . . Therefore, a third party bene- ficiary who is not a named obligee in a given contract may sue the obligor for breach.’’ (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 217, 982 A.2d 1053 (2009). Although the third party beneficiary doctrine was originally developed in the law of contracts, this court has recognized that third party beneficiaries may enforce covenants in land.24 See, e.g., Colaluca v. Ives, 150 Conn. 521, 526, 191 A.2d 340 (1963); see also 1 Restatement (Third), supra, § 2.6 (2) (‘‘[t]he benefit of a servitude may be granted to a person who is not a party to the transaction that creates the ser- vitude’’). Under the third party beneficiary doctrine, ‘‘[t]he ulti- mate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] . . . . [T]hat intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties. . . . [I]t is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . .’’25 (Citation omitted; internal quotation marks omitted.) Dow & Con- don, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580, 833 A.2d 908 (2003). We also note that, although construction of a deed is ultimately a matter of law and subject to plenary review; Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 511, 757 A.2d 1103 (2000); the analysis is a context dependent one: ‘‘[I]f the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambigu- ity.’’ Id. 3 With this framework in mind, we now look to the undisputed facts of the present case relating to cove- nant benefits and the intent of the covenanting parties that may be discerned from those facts. First, it is possi- ble to conclude that the covenants at issue created a transferable benefit in gross that inured to the school independent of its ownership of land. Specifically, the deed provides that the covenant benefits ‘‘shall inure to the benefit of the [g]rantor, its successors and assigns, and shall run with the land.’’ This language makes clear that the parties intended to create an endur- ing benefit that would survive the school, but because the school retained no land following the sale, any bene- fits conferred on the school cannot possibly be appurte- nant to the land and therefore must be construed to be in gross. See Pulver v. Mascolo, supra, 155 Conn. 650–51.26 The possibility that the covenants at issue created a transferable benefit in gross in the school sets up a potentially dispositive question regarding whether the school has transferred that right to Wendy Federer.27 It appears that the school and Wendy Federer attempted to accomplish such a transfer, but that the putative transfer occurred after the school had been dissolved by administrative order pursuant to General Statutes § 33-890.28 Under General Statutes § 33-891 (a), ‘‘[a] cor- poration administratively dissolved continues its corpo- rate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs under [General Statutes § 33-884] . . . .’’ The question of whether corporate action qualifies as ‘‘winding up’’ is a factual matter for the trial court to determine, subject to a clearly erroneous standard of review. See Campisano v. Nardi, 212 Conn. 282, 290, 562 A.2d 1 (1989). In the present case, the trial court concluded that the covenants are void and therefore made no determination whether there are material ques- tions of fact regarding whether the school’s attempted transfer of its rights under the covenant qualified as winding up its affairs. With respect to the question of whether the defen- dants could enforce the covenants in the present case as third party beneficiaries, the trial court concluded that ‘‘the present deed expresses a clear intent to benefit the grantor, the school, not the defendants’ property, and the surrounding circumstances do not contradict that intent.’’ After a review of the record, we conclude that the trial court improperly determined that there are no issues of material fact regarding whether the parties to the original contract intended that the cove- nants would provide an appurtenant benefit to Read as owner of the adjacent property now owned by the defendants. Although the covenants do not specifically mention the adjacent property or Read, the circum- stances surrounding the transaction at the very least create an ambiguity as to whether the covenants were intended to confer such a benefit. Although the school may