Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC086501. Valerie Lynn Baker, Judge.
The Guerrini Law Firm, John D. Guerrini and Brandon N. Krueger for Defendants and Appellants.
Freeman, Freeman & Smiley, Steven E. Young and Nicholas A. Rozansky for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Plaintiff John Connor (Connor) filed a suit for declaratory relief and to quiet his title and avoid the building restrictions in a document between his predecessor-in-interest Charles Gotanda (Gotanda) and defendants William P. Kennedy and Cecilia E. Kennedy (the Kennedys). The trial court found that the purported height restriction did not bind any person other than Gotanda and was not enforceable as a covenant running with the land or as an equitable servitude. We affirm.
FACTS
In 1966, the Kennedys purchased a lot in Marina del Rey and built a year later. Around 1975, their neighbor, Gotanda, applied for a building permit. On October 6, 1975, during a California Coastal Commission (Commission) hearing, it was agreed between Gotanda and the Kennedys, that if Gotanda recorded a deed restriction in favor of the Kennedys to the effect that the structure Gotanda would build at 218 Montreal Street would not exceed the floor of the living room of the Kennedys’ house, the Kennedys would forego any further opposition to Gotanda’s application before the Commission.
In March 1976, the Kennedys drafted the 1976 agreement, which he took to Gotanda to sign. The 1976 agreement was supposedly to effectuate the 1975 agreement, an agreement that had never been recorded. On March 8, 1976, Gotanda signed the 1976 agreement. The 1976 agreement was recorded in the office of the Los Angeles County Recorder on March 9, 1976.
He had not yet constructed a residence.
The 1976 agreement states, in part: “WHEREAS, Charles Gotanda, desires to perform pursuant to the agreement with William P. Kennedy dated October 6, 1975, with respect to said Lots. [¶] NOW, THEREFORE, for good and valuable consideration, Charles Gotanda covenants and agrees that no building or structure (including, without limitation, any chimney) which may be constructed on said Lot 8, Block 18 of Playa del Rey Townsite shall or will exceed the height of 29 feet 6 inches above the centerline of Montreal Street at the point where said centerline intersects the midline of said land.”
In 1978, Gotanda sold his property to Connor. Connor alleges that the first time he ever saw the 1976 agreement was in 1987, when William Kennedy showed it to him. Connor did not think anything about the agreement since it was between Kennedy and Gotanda. Connor sold the property, but in 1986 he repurchased it. Shortly after he reacquired the property, Connor had a discussion with the Kennedys about the height restriction.
After four days of trial, including the trial court’s tour of the parties’ homes and neighborhood, the trial court found that there was no covenant running with the land. The trial court also found that the evidence was not sufficient to support a finding of an equitable servitude.
In making its ruling, the trial court found it was significant that the 1975 agreement and the 1976 agreement were both drafted by William Kennedy, who was a lawyer, judge and teacher. The trial court found that the agreement did not bind Gotanda’s successors.
The trial court noted that when William Kennedy bought his lot in 1966 or 1967, no one ever promised him that his view would not change and the evidence showed significant changes in the character of the neighborhood and views in the neighborhood. The trial court even noted that the Kennedys’ home obstructs the west view of their upslope neighbor.
Because the trial court found there was no covenant running with the land or equitable servitude, it was unnecessary to reach the issue of the changed conditions in the neighborhood.
CONTENTION
The Kennedys contend that the restrictive covenant is enforceable against Connor either as a covenant running with the land or as an equitable servitude.
DISCUSSION
A. Covenant Running with the Land
In order to be enforceable under Civil Code section 1468, the instrument creating the covenant must meet all of the following requirements:
All further statutory references are to the Civil Code.
“(a) The land of the covenantor which is to be affected by such covenants, and the land of covenantee to be benefited, are particularly described in the instrument containing such covenants;
“(b) Such successive owners of the land are in such instrument expressed to be bound thereby for the benefit of the land owned by, granted by, or granted to the covenantee;
“(c) Each such act relates to the use, repair, maintenance or improvement of, or payment of taxes and assessments on, such land or some part thereof, or if the land owned by or granted to each consists of undivided interests in the same parcel or parcels, the suspension of the right of partition or sale in lieu of partition for a period which is reasonable in relation to the purpose of the covenant;
“(d) The instrument containing such covenants is recorded in the office of the recorder of each county in which such land or some part thereof is situated.”
The 1976 agreement did not meet the second listed requirement. The 1976 agreement does not indicate that the successors and assigns of Gotanda are to be bound by it. There is a reference to a 1975 agreement that is not attached or recorded.
The 1976 agreement did include the following language: “The foregoing provision shall remain in full force and effect unless and until the owners of the adjoining premises to the east [the Kennedys’ property], . . . their successors, or assigns, consent in writing, duly signed and acknowledged, to the removal and termination of these covenants, conditions and restrictions.”
While the 1976 agreement attempts to allow only the Kennedys to remove the restriction in the agreement, the 1976 agreement clearly does not state that successive owners of Gotanda’s property were to be bound by the restriction. Nothing in the 1976 agreement states that it is to be a covenant running with the land and it does not contain the required language of section 1468.
The Kennedys argue that the height restriction imposed by the 1976 agreement on Gotanda’s property could not be escaped unless and until the Kennedys or their successors or assigns consented in writing. The Kennedys also argue that a reasonable interpretation is that it is binding on Gotanda and his successors and assigns. Unfortunately, the agreement drafted by William Kennedy does not say so.
The Kennedys’ reliance on Soman Properties, Inc. v. Rikuo Corp. (1994) 24 Cal.App.4th 471, 483 in support of their argument is misplaced. In Soman Properties, Inc., the original owner of commercial property divided the property into two parcels and concurrently recorded covenants, conditions, and restrictions (CC&Rs) on the parcels. Respondent contended that the CC&Rs were not enforceable because they were ambiguous. The CC&Rs provided that “‘each covenant to do or refrain from doing some act on the Shopping Center . . . [r]uns with both the land owned by the covenantor and the land owned by the covenantor . . . .’” (Id. at p. 485.) The court held that the language must be interpreted in the context of the facts which existed at the time the document was executed. At the time it was executed, both parcels were owned by the covenantor. (Ibid.) The covenantor bound all successor owners of his land. In the instant case, at the time the agreement was made, the Kennedys owned their parcel and Gotanda owned his. There was no language binding Gotanda’s successors.
B. Equitable Servitude
The Kennedys contend that under Marra v. Aetna Construction Co. (1940) 15 Cal.2d 375, the 1976 agreement should be enforced as an equitable servitude because their view to the west would be obstructed and because Connor bought his property with notice of the height restriction. We disagree.
In the Marra case, the grant deed recited that “‘the grantees, their successors and assigns’ covenanted that for forty years thereafter no structure other than a one-family residence costing at least $8,000 would be built upon the land. The deed also declared that [the] provision [would] be deemed a ‘covenant running with the land’ and [would] at all times be binding upon and enforceable against the grantees, their successors and assigns, or against any and all persons who should at any time thereafter become the owner of the land conveyed by the deed.” (Marra v. Aetna Construction Co., supra, 15 Cal.2d at p. 376.)
The Marra case is inapposite. While the Marra case held that even though a covenant does not run with the land, it may be enforceable against a transferee of the covenantor who takes with knowledge of its terms under circumstances which would make it inequitable to permit a party to avoid the restriction. In the instant case, the evidence is insufficient to show that Connor had notice of an agreement regarding height restrictions that would be binding on him. The 1976 agreement signed and recorded by Gotanda does not express that intent, only referring to an agreement between Gotanda and the Kennedys dated October 6, 1975. The 1975 agreement was never recorded and the facts in Marra are different.
Because we agree that the 1976 agreement is not enforceable as a covenant running with the land or an equitable servitude, we do not address Connor’s contention that changed conditions in the community have rendered the height restrictions in the 1976 agreement obsolete.
The judgment is affirmed.
We concur: MALLANO, Acting P. J., ROTHSCHILD, J.