Summary
remanding to trial court for entry of injunction to enforce restrictive covenant
Summary of this case from Sonoma Development, Inc. v. MillerOpinion
44823 Record No. 830820
Decided June 14, 1985
Present: All the Justices
Trial court's denial of injunctive relief to property owner was reversed where a subdivision's restrictive covenant barring "shacks, tents, house trailers or temporary dwellings of any kind whatsoever" was not shown invalid by any fundamental change in conditions in the area, and was clearly intended to bar "campers" and "motorhomes" such as used by defendants.
Property — Real Property — Contracts — Covenants — Residential Restrictions — Burden of Proof
Plaintiffs and defendants owned lots in a subdivision subject to restrictive covenants forbidding erection of "shacks, tents, house trailers or temporary dwellings of any kind whatsoever." In the years after 1958 when the subdivision was established for residential and recreational purposes, all dwellings in it were permanent houses which complied with the restrictions. Floods in 1969 and 1972 caused the county to adopt regulations requiring that future structures be placed at certain elevations. Beginning in the late 1970s, defendants brought camping vehicles onto the property; at the time of the suit five families had campers or motor homes on lots in the subdivision. Plaintiff sued to enjoin defendants from maintaining camping vehicles on the property. The trial court found that the restrictions had not literally been violated and that they were, in any event, unenforceable. Plaintiff brought this appeal.
1. Ordinarily, residential restrictions are deemed to be reasonable and valid, and will be enforced in equity.
2. To defeat enforcement of residential restrictions on grounds of changed conditions, a party must show a change so radical as virtually to destroy the essential aims of the agreement.
3. A single change in condition resulting from the county's adoption of an ordinance to protect the land from flood damage did not radically change the residential character of the neighborhood.
4. Even though the area where the property is located is primarily recreational, it also remains residential in nature.
5. Since there is no greater possibility of floods now than when the restrictions were imposed, the trial court erred in finding a radical change of conditions sufficient to make the restrictions unreasonable.
6. Restrictive covenants are not favored and must be strictly construed.
7. The party seeking to enforce a restriction must prove that it proscribes the acts of which he complains.
8. Equity will enforce reasonable restrictions if the parties' intent is clear.
9. Since the developer and his grantees meant to exclude all kinds of temporary residences, campers fall within the prohibition because they are used as temporary residences.
10. Even though a covenant expressly forbids only the "erection" of temporary dwellings and the defendants' campers were not "erected" on the property, the covenant must be read in context so as not to thwart the parties' intent to bar temporary dwellings.
11. Since the restrictive covenants were reasonable, enforceable and prohibited campers on the lots, the court committed reversible error in denying plaintiffs' prayer for relief.
Appeal from a judgment of the Circuit Court of Amherst County. Hon. Robert C. Goad, judge presiding.
Reversed and remanded.
Royston Jester, IV (Jester, Jester and O'Keffee, on brief), for appellants.
J. Michael Gamble (Pendleton Gamble, on brief), for appellees.
Appellants, Dudley H. Marks and Thurman H. Upchurch (collectively, Marks), sued to enjoin the appellees, Carlton L. Wingfield and others (defendants), from placing campers upon certain subdivision lots owned by the defendants. All lots in the subdivision are subject to the following restrictive covenants:
The other appellees are: John T. Fulcher, Raymond T. Gilbert, Grave W. Gilbert, William B. Pleasants, Jean R. Pleasants, David N. Sellick, Sr., David N. Sellick, Jr., Patricia H. Sellick, Elizabeth K. Sellick, Samuel Poindexter, and Linda S. Poindexter.
A camper is "a portable dwelling (as a specially equipped trailer or automotive vehicle) for use during casual travel and camping." Webster's New Collegiate Dictionary 158 (1980).
1. No shacks, tents, house trailers or temporary dwellings of any kind whatsoever shall be erected on the property.
2. Lots hereby conveyed shall be used and occupied for residential purposes only, and only one single-family residence shall be constructed on any lot.
In their responsive pleadings, defendants denied that they violated the restrictions, and, alternatively, that, even if they had, they claimed that the restrictions were invalid and unenforceable. The trial court ruled in favor of the defendants on both grounds, and this appeal resulted. Thus, we must determine (1) whether the restrictions are valid and enforceable, and, if so, (2) whether the defendants violated them.
The evidence was taken by depositions, and the material facts are undisputed. The subdivision known as "Riverside" was established in 1958 and consists of 19 residential lots fronting on the James River in Amherst County. Riverside, which always has been primarily a recreational area, contains nine permanent houses.
It was not until the late 1970 's that campers were placed in the subdivision. During this period, the defendants brought campers to the subdivision. Previously, all dwellings had been permanent structures which complied with the restrictions. When the present suit was instituted, five campers were located within Riverside. A real estate appraiser opined that placing campers or other temporary structures near a single-family residence adversely affects the value of the residence property.
These campers are mobile and are either towed or driven upon the land. They are titled by the Division of Motor Vehicles. Generally, when in place, the campers are supported by jacks or bricks which are placed under them on the ground. However, such supports, although desirable, are not necessary. The campers are suitable for use as temporary dwellings, and, occasionally, some defendants sleep in them overnight. Electric and natural gas utilities are connected to the campers.
One of the campers is a self-propelled "motor home."
The subdivision was subjected to major flooding by the river in 1969 and 1972. The floods, however, did not cause any substantial damage to the permanent houses. Because of the floods, the County adopted regulations requiring that future structures be placed at designated elevations.
First, we address the defendants' contention that the restrictions are invalid and unenforceable because, due to flooding, the character of the neighborhood has changed from residential to recreational. They argue that the area is unsuitable for permanent dwellings; therefore, because the intended purpose of the restrictions has ceased to exist, the covenants are no longer reasonable.
[1-2] Ordinarily, residential restrictions are recognized as reasonable and valid, Ault v. Shipley, 189 Va. 69, 76, 52 S.E.2d 56, 59 (1949), and will be enforced in equity, Renn v. Whitehurst, 181 Va. 360, 366, 25 S.E.2d 276, 278-79 (1943). When a party seeks to defeat their enforcement on the ground of changed conditions in the neighborhood, he must prove that conditions in the whole neighborhood have changed so radically as to virtually destroy the essential purposes and objectives of the agreement. Hening v. Maynard, 227 Va. 113, 118, 313 S.E.2d 379, 382 (1984); Ault, 189 Va. at 76-77, 52 S.E.2d at 59; Booker v. Old Dominion Land Co., 188 Va. 143, 148, 49 S.E.2d 314, 317 (1948); Deitrick v. Leadbetter, 175 Va. 170, 177, 8 S.E.2d 276, 279 (1940).
The record discloses only one change of condition in the subdivision since the restrictions were imposed. That change resulted from the County's adoption of an ordinance, as a protection against flood damage, which regulated elevation of structures to be built in the subdivision. However, this did not radically change the residential character of the neighborhood.
While the defendants correctly assert that the subdivision is primarily a recreational area, it was always recreational in nature. It is important to note, however, that in a subdivision containing only 19 lots, nine permanent houses have been built. Clearly, therefore, the area remains residential, as well as recreational, in character.
Finally, the possibility of flooding is no greater now than when the restrictions were imposed. We conclude that the record does not support a finding that there has been such a radical change of conditions in the neighborhood as would make the restrictions unreasonable. Thus, the court erred in this ruling.
Next, we consider whether the defendants violated the covenants. They contend that they did not because the restrictions do not exclude campers.
[6-8] Restrictive covenants are not favored and must be construed strictly. Moreover, the party who seeks to enforce a restriction has the burden of proving that it proscribes the acts of which he complains. Hening, 227 Va. at 117, 313 S.E.2d at 381. Nevertheless, equity will enforce restrictions when they are reasonable and the intention of the parties is clear. Id.
We believe it is clear from a reading of both restrictions that the developer and his immediate grantees intended to exclude all types of temporary residences in the subdivision. Indeed, one restriction expressly prohibits "temporary dwellings of any kind whatsoever." Because campers are used as temporary residences, they fall within the prohibition. The mere fact that they have been used sparingly as living quarters is of little significance. More significantly, the campers are susceptible to residential use and, at times, have been so used.
In finding that the restrictions had not been violated, the trial court focused upon the word "erected" and concluded that the campers "are not erected or constructed on the lots," but are "easily movable." The same argument could be applied with equal force, however, to "house trailers" which are expressly prohibited by restriction Number One. We conclude that when the restrictions are read together, such a construction defeats the obvious purpose and objective contemplated by the parties, i.e., to create a residential subdivision containing permanent, single-family dwellings.
We hold, therefore, that because the restrictions are reasonable and enforceable, and prohibit campers on the subdivision lots, the court erred in denying the injunction. Thus, we will reverse the decree of the trial court and remand the cause with directions that an injunction be entered consistent with the views expressed herein.
Reversed and remanded.