Opinion
C.A.# 01C-11-026-FSS
Submitted: August 19, 2002
Decided: November 27, 2002
OPINION and ORDER
Upon Plaintiffs' Motion for Summary Judgment — DENIED
Richard H. Cross, Jr., Esquire, Attorney for Plaintiffs.
John J. Conly, Esquire, Attorney for Defendants, Pamela S. Kane and Boyd A. Hopkins.
John R. Weaver, Jr., Esquire, Attorney for the remaining Defendants.
In this declaratory judgment action, the court must look at a restrictive covenant in a deed and its purported extension. Plaintiffs own part of a lot in an existing development and an adjoining parcel. They intent to combine the parcels to create a lot on which they intend to build another house. Defendants are Plaintiffs' neighbors. They contend that the original deed from which Plaintiffs took contains a "one dwelling" restriction that ran with the land. The neighbors also contend that the restriction was renewed in 2000. Accordingly, Plaintiffs' plans allegedly violate the restrictive covenant in their deed.
I.
Plaintiffs James H. Wertz and Anne W. Moffatt, filed suit on November 5, 2001 seeking a declaratory judgment. Defendants Kane and Hopkins filed an answer on December 3, 2001. Defendant Hammond and Matthewson, as well as Mark and Patricia Bradley answered on January 2, 2002. An amended complaint was filed January 28, 2002 under 10 Del. C. § 3104.
On March 6, 2002 judgment by default was entered against the Defendants who did not answer the complaint. Plaintiffs then filed a motion for summary judgment on March 22, 2002 against the answering Defendants: Kane, Hopkins, Hammond, Matthewson and the Bradleys. On April 23, 2002, Defendants Kane and Hopkins filed an answering brief to Plaintiffs' summary judgment motion. Defendants Hammond and Matthewson, as well as Mark and Patricia Bradley, filed their answering brief on April 29, 2002. Plaintiffs responded with a reply brief on May 1, 2002.
In a letter dated July 31, 2002, the court issued a preliminary decision holding, as a matter of law, that the "one dwelling lot" restrictive covenant in the 1937 deed, explained below, runs with the land. That is because the covenant touches and concerns the land and there is privity between the neighbors and the grantor. Although the promises contained in the 1937 deed appear to be personal, when the deed is considered in its entirety those covenants would remain in force until at least 1960. In addition, the court held that the restrictive covenant filed in 2000 for a twenty year period, expiring in 2020, is invalid. The court based that holding on the rationale that in order to extend the original deed restrictions, all of Wyckwood, or at least Plaintiffs, would have had to agree to the extension. The court left open the question as to whether the 1944 extension suffers from the same infirmity as the 2000 extension. With that, the court instructed Plaintiffs to supplement their reply. Defendants also were allowed to file a supplemental pleading. Plaintiffs' supplemental reply was filed August 14, 2002. Defendants Kane and Hopkins choose to file a supplement answering brief, and did so on August 19, 2002.
Werntz v. Hopkins, et al, C.A. 01C-11-026-FSS.
Id. at 3. (The record suggests that Plaintiffs' predecessor, their mother, actually agreed to the last 10 year extension, filed in 1990.)
II.
In 1936, Plaintiffs' predecessors were two of six original developers of the Wyckwood subdivision. The original developers planned the subdivision to contain 23 home lots and two commercial lots. Wyckwood was subject to certain deed restrictions and covenants. In pertinent part the deed states:
Grantors expressly reserve the right at any time to annul, waive, change or modify any of the restrictions, conditions, covenants, agreements or provisions contained herein, as to any part of said tract then owned by the said grantors, and with the consent of the then owner as to any other land included in said tract, provided such changes be made without the objections of the owners of more than one-half of the frontage on Shipley Road as being prejudicial to their welfare.
The deed also contains language that:
[its] covenants shall be taken to be real covenants running with the land and shall be binding upon the heirs, executors, administrators and assigns of the grantee until December 31, 1960, at which time they shall be considered to be extended in their entirety for an additional period of ten years and thereafter for other successive periods of ten years unless, prior to December 31, 1960, or prior to the expiration of some one of the ten year extension periods, appropriate instruments in writing consenting to their termination in whole, or in part shall be filed for record, executed and acknowledged by the said grantors and by the owners of not less than two-thirds of the frontage of the tract on Shipley Road as being to their best interest.
Development of Wyckwood began and on September 20, 1944, the original owners, along with several new owners, signed a new deed that did not change any of the covenants or restrictions, but rather, changed the covenant's renewal or sunset provision. Under the 1944 deed, instead of renewing automatically every ten years unless two-thirds of the frontage of the Shipley Road property residents objected, now more than two-thirds of the frontage of Shipley Road property residents would have to affirm the renewal every ten years. The restriction was affirmatively renewed until the year 2000, at which time a twenty year extension purportedly was established.
In addition to the Wyckwood deed restrictions, the deed to Lot 1, purchased by Plaintiffs' predecessors on February 13, 1937 from Wyckwood Associates, contained additional restrictions. Specifically, "only one dwelling house, together with appurtenant out-buildings can be erected [on Lot 1] during the existence of the [Wyckwood] restrictions hereinabove recited."
On February 2, 1966, Plaintiffs' predecessors purchased an adjoining lot, approximately .205 acres, which was not part of Wyckwood and thus, not subject to Wyckwood's covenants. Thereafter, Plaintiffs' predecessors subdivided their property into two lots. Lot 1A, which originally was 1.089 acres became .761 acres. Lot 1A has always been part of Wyckwood, and it is where Plaintiffs' predecessors house was built. Lot 1B, which originally was .205 acres became .533 acres. In other words, Lot 1A is part of Wyckwood and therefore restricted by its covenants and Lot 1B is partially part of Wyckwood, thus partially restricted by its covenants.
Plaintiffs' predecessors lived in the house on Lot 1A until May 6, 1977 when they sold it to Defendant Kane and her then husband. Plaintiffs' predecessors never sold Lot 1B, however. This lot is vacant. And as mentioned, it is this lot that Plaintiffs wish to sell to a potential buyer for development.
III.
Generally, where a covenant is clear, "no room is left for interpretation or for construction." If the court must construe a covenant in order to glean the intent of the parties to it, the general rule is that "restrictions on the use of land are construed most strongly against the grantor." It has long been held that "the law favors the free use of one's property."
Equitable Trust Co ., v. O'Neill, 420 A.2d 1196, 1200 (Del.Super.Ct. 1980).
Andrews v. McCafferty, 275 A.2d 571, 573 (Del.Ch. 1971).
Id.
IV.
Plaintiffs' first contention is that the one dwelling house provision contained in the deed to Lot 1 was personal and did not run with the land. Furthermore, Plaintiffs argue that since it was a personal covenant, Defendants can not enforce it against Plaintiffs. The court rejected that contention in its preliminary ruling, summarized above.Plaintiffs' second contention is that the various attempts to add restrictions to the Wyckwood covenants and to extend the Wyckwood covenants for twenty years are ineffective and unenforceable. Last, Plaintiffs contend that the one dwelling house provision in the Werntz deed was only in force as long as the Wyckwood covenants were in existence. Thus, since the Wyckwood covenants are no longer effective and enforceable then the one dwelling house provision in the Werntz deed is no longer in force.
Defendants challenge the plan to build a house on Lot 1B. They contend that the one dwelling house provision contained in the deed to Plaintiffs' predecessors runs with the land. Defendants further argue that out of the proposed 23 lots, two were sold without the one dwelling house provision and were developed as medical/dental offices. Defendants argue these lots restrictions are consistent with the general development plan Plaintiffs' predecessors had in mind. Defendants' second contention is that the restriction extension executed in 2000 is valid and enforceable. It extends the one dwelling house provision contained in the initial deed to Plaintiffs' predecessors. Defendants also argue that the 2000 extension is invalid because restrictions cannot be modified unless all owners agree on the modifications proposed. The same reasoning pertains to the 1944 modification because it suffers from the same infirmity. Thus, if the 1944 modification is invalid, then the original deed, where the restrictions automatically renew for ten year periods unless specifically terminated, governs.
At this point, the remaining issue is whether the 1944 deed, which converted the 1937 deed restriction's automatic renewal provision into an automatic sunset provision, is valid if less than the entire owners of Wyckwood agreed to it.
V.
It appears that the 1944 change was enacted consistent with the organic documents and that the grantors and at least a large percentage, if not all of the property owners agreed upon the amendment. Furthermore, after the change was adopted, no one protested that it was illegal and everyone lived under the 1944 amendment until 2000. Those undisputed facts taken together lead to no other conclusion except that the 1944 amendment was effective.
As to the 2000 extension, the organic documents and the 1944 modification gave the neighbors the authority to extend the covenants for successive ten year periods. The effort to cantilever the extension into a 20 year extension was overreaching. It is beyond dispute, however, that all the requisite for the traditional ten year extension existed. Taking all the undisputed facts into account, the court concludes as a matter of law that the events that occurred in 2000 amounted to the usual ten year extension. The court declines to hold that because the attempted extension could not be increased to 20 years by an agreement of less than all Wyckwood owners, that means the clear effort to extend the restriction as long as legally possible failed and the restriction expired through inaction.
For the foregoing reasons, Plaintiffs' Motion for Summary Judgment is DENIED, and mediation is ordered.
IT IS SO ORDERED.