Present: All the Justices
ADIN K. WOODWARD, ET AL.
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 952041 September 13, 1996
HENRY C. MORGAN, JR., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
William G. Plummer, Judge Designate
In this suit brought to enforce a restrictive covenant in a
deed and to enjoin construction of a residence, the dispositive
question on appeal involves the interpretation of the covenant.
In 1935, the original plat of "Ubermeer Annex No. 1," a
residential subdivision located in the present City of Virginia
Beach, was recorded. As originally platted, the subdivision
consisted of 13 sites, labelled "A" through "M." Initially, the
13 sites were conveyed as twelve lots and sold to 11 landowners.
In 1982, appellees Henry C. Morgan, Jr., and Marnie J.
Morgan, his wife, defendants below, purchased Lot K and the
existing residence, known as 420 52nd Street. This lot, as well
as the others in the subdivision, had been originally conveyed by
the Masury Corporation subject to nine restrictive covenants.
After the initial sales, the subsequent deeds contained the usual
language making the conveyances subject to all the unexpired
conditions, restrictions, easements, and reservations of record
affecting the property.
The restriction at issue in this dispute is No. 5, which
provides: "That not more than one residence exclusive of
outbuildings shall be erected upon one lot."
In 1989, the defendants resubdivided Lot K, creating two
lots designated "K-1" and "K-2." Lot K-1, upon which the
residence is situated, encompasses approximately 0.45 acre. Lot
K-2 contains approximately 0.116 acre and is currently vacant.
The defendants propose to construct a residence upon Lot K-2;
this spawned the present lawsuit.
In January 1995, appellants Adin K. Woodward, Lucille
Woodward, Everett W. Foote, Laura Foote, Charlotte Y. Dashiell,
Richard L. Walthall, and Juliette Walthall, plaintiffs below,
filed a bill of complaint against the defendants. The
plaintiffs, owners of property in the subdivision, contended that
the language of the Ubermeer Annex No. 1 deeds is clear and
unambiguous: a lot was conveyed, and only one residence was to
be constructed upon it even though the original lot was
resubdivided. Asserting they are parties intended to be
benefitted by the deed restriction, the plaintiffs asked the
court to rule that the restriction will be violated by the
construction of a dwelling on Lot K-2 and asked the court to
enjoin the construction.
Responding to the bill of complaint, the defendants
contended that the word "lot" has no relation to the originally
platted sites or to the originally conveyed lots, and therefore
the restriction permits construction of as many residences as
there are legally created lots in the subdivision.
Following a June 1995 ore tenus hearing, at which the
chancellor considered testimonial and documentary evidence, the
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court ruled in favor of the defendants. In an oral opinion, the
chancellor stated, and counsel for the parties agreed, that the
"dispositive" question involved interpretation of covenant No. 5.
The court found the covenants to present "an ambiguous
situation" and, examining the intention of the original grantor,
rejected the plaintiffs' contention that the word "lot" meant a
lot as originally conveyed. Rather, the court decided that the
word means a parcel that may at any time become a lot.
Consequently, the court ruled in the August 1995 final
decree dismissing the bill of complaint, from which the
plaintiffs appeal, that "erection of the proposed single family
residence on K-2 does not violate any of the restrictive
covenants."
Parenthetically, we note that the trial court, both during
the oral opinion and in the final decree, ruminated upon certain
"additional" findings of fact without making any conclusions of
law, dealing with what the defendants describe as "waiver and
acquiescence." As the defendants properly note on brief,
however, those findings "do not affect the court's ruling"
because counsel for "both sides agreed" that the court's decision
regarding ambiguity was "dispositive of the issues." Thus, we
shall not address further the chancellor's "additional" findings
but shall focus upon interpretation of the restriction.
Virginia law on the subject of restrictive covenants in
deeds is settled. Valid covenants restricting the free use of
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land, although widely used, are not favored and must be strictly
construed. The burden is upon the party seeking to enforce deed
restrictions to demonstrate that the covenants are applicable to
the acts of which complaint is made. Substantial doubt or
ambiguity is to be resolved against the restrictions and in favor
of the free use of property. Friedberg v. Riverpoint Bldg.
Comm., 218 Va. 659, 665, 239 S.E.2d 106, 110 (1977).
"Nevertheless, equity will enforce restrictions when they
are reasonable and the intention of the parties is clear." Marks
v. Wingfield, 229 Va. 573, 577, 331 S.E.2d 463, 465 (1985).
In Renn v. Whitehurst, 181 Va. 360, 25 S.E.2d 276 (1943),
this Court considered the intention of the same grantor (Masury
Corporation) regarding an identical restriction ("That not more
than one residence exclusive of outbuildings shall be allowed
upon one lot") in the deeds of a subdivision ("Ubermeer")
adjacent to the subdivision that is the subject of the present
dispute. This Court declared the restrictions "valid and
enforceable," id. at 365, 25 S.E.2d at 278, and determined they
formed part of a general plan for disposing of lots "as highly
restricted residential property." Id. at 362, 25 S.E.2d at 277.
Like this Court's prior ruling in Renn based on the evidence
in that case, we hold, based on the evidence in the present case,
that this restriction is valid and enforceable, forming part of a
general plan to keep density low, preserve an area of large
residential lots, and maintain property values. From a reading
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of restriction No. 5, together with the other restrictions, we
believe that the original grantor and its immediate grantees, in
plain and unambiguous language, intended the term "lot" to mean a
lot as originally conveyed.
Each of the source deeds for Ubermeer Annex No. 1 is part of
the appellate record. When applied to the subdivision as a
whole, the term "lot" clearly means the sites as originally
conveyed. For example, the grantees of sites D and K, the first
sites conveyed, each received a "lot," identified as a particular
"lot" as designated by a letter on a plat. Likewise, the
grantees of sites C, E, F, J, L, and M each received a "lot,"
identified as a particular "site" as designated by a letter on a
plat. The single grantee of sites A and B received two "lots,"
identified as two individual sites. Thus, eight grantees
received one "lot" each while another grantee received a pair of
"lots." Each conveyance was subject to the restriction, and the
term "lot" in each means the sites as originally conveyed.
The defendants, urging affirmance of the judgment below,
point to the evidence showing that sites G, H, and I were
originally conveyed differently than the other sites. The record
shows that these three lots were sold as a site and one-half to
two different purchasers. Site I and the western one-half of
site H were sold originally to one purchaser and called one
"lot." Site G and the eastern one-half of site H were sold
originally to another buyer and called one "lot." One residence
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was placed later on each of the two lots.
The defendants argue that this constituted the placing of
more than one residence per lot because a portion of the
structures on "new" Lot G with one-half of site H, and on "new"
Lot I with one-half of site H, amounted to placing parts of two
residences on original site H. Thus, defendants contend, the
argument that the grantor, in creating the subdivision, wanted to
limit the purchaser's right to build only one residence on the
original lots "ignores the grantor's resubdivision and ignores
the reality of what actually occurred -- the subsequent erection
of two different residences on Lot H." We reject this
contention.
In the first place, there is no evidence that
representatives of the grantor corporation knew where any future
structures would be located on the properties. In the second
place, and more important, each grantee obtained a "lot,"
described as one and one-half sites. The manner of these
conveyances, providing for less density and less construction,
was consistent with the overall plan for a highly restricted
residential subdivision.
Finally, one other contention made by the defendants merits
discussion. They say that "further confusion" is added to the
restrictions when No. 7 is considered. It provides: "That all
residences erected upon said property shall be at least fifteen
feet from the line [sic] and at least three feet from the side
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line of each lot." "Obviously," argue the defendants,
"restriction 7 contemplates more than one residence on the
property conveyed."
We disagree. Manifestly, as the plaintiffs contend,
restriction No. 7 addresses the construction of successive, not
coexisting, structures.
Consequently, we will reverse the final decree in this suit
because it is plainly wrong and contrary to law. We will enter
final judgment declaring that construction of a residence on Lot
K-2 will violate the applicable restrictive covenants for
Ubermeer Annex No. 1. Additionally, we will remand the cause to
the trial court for entry, if necessary, of an appropriate
injunction to enforce our judgment.
Reversed, final judgment,
and remanded.
JUSTICE KEENAN, with whom JUSTICE KOONTZ joins, dissenting.
I agree with the trial court that this restrictive covenant
is ambiguous. As the majority has stated, any substantial doubt
or ambiguity must be resolved against the restriction and in
favor of the free use of the property. Friedberg v. Riverpoint
Bldg. Comm., 218 Va. 659, 665, 239 S.E.2d 106, 110 (1977).
Moreover, because restrictive covenants are disfavored, they will
not be aided or extended by implication. Stevenson v. Spivey,
132 Va. 115, 119, 110 S.E. 367, 368 (1922); see Mid-State
Equipment Company, Inc. v. Bell, 217 Va. 133, 140, 225 S.E.2d
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877, 884 (1976).
The majority assumes that "lot" in the restrictive covenant
has the same meaning as "lot" in the property description. There
is no basis for such an assumption. As used in the restrictive
covenant, "lot" can be interpreted with equal force as meaning
"any lot in Ubermeer Annex No. 1," or as meaning "any lot
appearing on the original plat for Ubermeer Annex No. 1." If the
grantor had intended in the restrictive covenant that "lot" mean
"any lot appearing on the original plat," the grantor could have
imparted that meaning by using the same term it used elsewhere in
the restrictive covenants, "upon the property hereby conveyed."
I also believe that the majority's reliance on Renn v.
Whitehurst, 181 Va. 360, 25 S.E.2d 276 (1943), is misplaced.
Renn is inapposite to the issue before us, because its holding
was based on a property owner's attempt to enlarge her house and
convert it into "duplex" housing on one lot. Id. at 365, 25
S.E.2d at 278. In contrast, the Morgans are seeking to build
only one dwelling on Lot K-2. Accordingly, I would affirm the
trial court's judgment.
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