IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
TIM OAKLEY and wife, ) July 27, 1999
MONICA OAKLEY, HELEN THOMAS, )
FRANK GRUBBS and wife, BRENDA ) Cecil Crowson, Jr.
GRUBBS, DANIEL THOMAS and wife, ) Appellate Court Clerk
SHERRY THOMAS, and JAN FOX, )
)
Plaintiffs/Appellants, )
)
VS. ) Appeal No.
) 01-A-01-9809-CH-00496
L. SCOTT LANG, )
) Sumner Chancery
Defendant/Appellee, ) No. 96C-237
Third Party Plaintiff, )
)
VS. )
)
LAWYERS TITLE INSURANCE )
CORPORATION, FREELANCE )
SEARCHES, INC., and )
SEAN MAHONEY, )
)
Third Party Defendants. )
APPEALED FROM THE CHANCERY COURT OF SUMNER COUNTY
AT GALLATIN, TENNESSEE
THE HONORABLE TOM E. GRAY, CHANCELLOR
PHILIP C. KELLY
125 Public Square
Gallatin, Tennessee 37066
Attorney for Plaintiffs/Appellants
ARTHUR E. McCLELLAN
116 Public Square
Gallatin, Tennessee 37066
Attorney for Defendant/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
CAIN, J.
COTTRELL, J.
OPINION
The question we must decide is whether the defendant’s home violated
a subdivision restriction against modular homes. The Chancery Court of Sumner
County held that the plaintiffs had failed to prove their case. We affirm.
I.
In February of 1996, Scott Lang purchased lot number three in the
Snaffles Subdivision in Sumner County. His deed referred to “restrictions and
easements of record.” Although the record is not entirely clear on what restrictions
were actually in Mr. Lang’s chain of title, a set of restrictions appear in the record
containing the following provision:
on Tracts 1-10 there shall be no temporary buildings,
shacks or partially completed buildings used for human
occupancy, no mobile home shall be placed upon this
property, nor modular homes.
Mr. Lang built a foundation on his lot and purchased a partially pre-
fabricated house. The house arrived by truck in two sections. By the end of the day
the two halves of the house had been put together on the foundation. The house then
contained the majority of the electrical wiring but not the plumbing, the heat and air
system, nor the trim. When the two halves were delivered, a portion of the roof was
attached to each side and could be completed by raising the two sides and joining
them together at the peak. Once the house was assembled on the foundation, the
outward appearance could not be distinguished from a house that had been built at
the site.
When the house was delivered in two halves, the neighbors immediately
protested. Then they filed this action for a mandatory injunction to have the house
removed. The chancellor strictly construed the restriction in favor of the free use of
the property, and held that without a clear definition of what constitutes a modular
home the case should be dismissed.
-2-
II.
Our cases have uniformly held to the proposition that restrictive
covenants are to be strictly construed against the party seeking to enforce them,
because they interfere with the right of unrestricted use of property. Turnley v.
Garfinkle, 362 S.W.2d 921 (Tenn. 1962); Beacon Hills Homeowner’s Assoc. v. Palmer
Properties, Inc., 911 S.W.2d 736 (Tenn. App. 1995); Jones v. Englund, 870 S.W.2d
525 (Tenn. App. 1993); Essary v. Cox, 844 S.W .2d 169 (Tenn. App. 1992). It follows
then, as some of the cases have held, that such covenants will not be extended by
implication to anything not clearly and expressly prohibited by their plain terms. See
Turnley v. Garfinkle, 362 S.W.2d at 923.
Although it may seem that we have been more hospitable to certain
covenants than a strict construction rule contemplates, see Judge Crawford’s dissent
in Albert v. Orwige, 731 S.W.2d 63 (Tenn. App. 1987), in this case the plaintiffs have
not furnished us with any definition of the term “modular homes” in the context of
restrictive covenants. There is nothing in this record to show the intent of the owners
who adopted the restrictive covenant in 1987.
One source of reference might have been the “Modular Building Act”
enacted in 1985 to require inspection at the place of manufacture of pre-constructed
buildings that arrive at the construction site with some or all of the electrical,
mechanical, plumbing and other systems already built into the unit. See Tenn. Code
Ann. § 68-126-302. The Act defined a “Modular Building Unit” as:
(6) “Modular building unit” means a structural unit,
or preassembled component unit including the necessary
electrical, plumbing, heating, ventilating and other service
systems, manufactured off-site and transported to the
point of use for installation or erection, with or without
other specified components, as a finished building and
not designed for ready removal to another site. “Modular
building unit” does not apply to temporary structures used
exclusively for construction purposes or nonresidential
farm buildings.
Tenn. Code Ann. § 68-126-303(6).
-3-
Later, another definition turned up in an opinion of this court in 1990.
The court looked at the legislative history of a 1980 act that prohibited local zoning
ordinances from excluding certain types of manufactured houses from residential
districts. Although the proposed act did not refer to modular homes, the house
members frequently used that term in the debate, because the members were
seeking to protect what they referred to as modular homes as distinguished from
mobile homes. This court concluded that “the legislators’ references to ‘modular’
housing were references to structures that were manufactured and transported in at
least two sections and then joined at the site into a single structure.” Tennessee
Manufactured Housing Association v. The Metropolitan Government of Nashville, 798
S.W.2d 254 at 259 (Tenn. App. 1990).
Either of these definitions might be what the developers of this
subdivision had in mind. But we note that they are not the same. Under the Modular
Building Act the definition applies to single, complete units as well as units that may
be components of a larger structure. Under the court’s definition in Manufactured
Housing, a single structure constructed off-site would not be a modular home.
The plaintiffs acknowledge that they did not object when one property
owner moved a complete house into the subdivision and set it on a foundation
constructed for it. If we adopted the statutory definition, that house violated the
covenant. Under the other definition, had Mr. Lang’s house been joined together
when it arrived, there would have been no objection. Or if it had been assembled in
another subdivision and subsequently moved to its present location in one piece it
would not have been a modular home. We conclude that the subdivision developers
must have had something more substantive in mind when they adopted the restrictive
covenant in question.
-4-
Therefore, we conclude that the chancellor was correct when he found
that the plaintiffs had not carried their burden of proving that Mr. Lang’s house was a
modular home within the restrictions adopted for the Snaffles Subdivision.
The judgment of the court below is affirmed and the cause is remanded
to the Chancery Court of Sumner County for any further proceedings necessary. Tax
the costs on appeal to the appellants.
_________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
_____________________________
WILLIAM B. CAIN, JUDGE
_____________________________
PATRICIA J. COTTRELL, JUDGE
-5-
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
TIM OAKLEY and wife, )
MONICA OAKLEY, HELEN THOMAS, )
FRANK GRUBBS and wife, BRENDA )
GRUBBS, DANIEL THOMAS and wife, )
SHERRY THOMAS, and JAN FOX, )
)
Plaintiffs/Appellants, )
)
VS. ) Appeal No.
) 01-A-01-9809-CH-00496
L. SCOTT LANG, )
) Sumner Chancery
Defendant/Appellee, ) No. 96C-237
Third Party Plaintiff, )
)
VS. )
)
LAWYERS TITLE INSURANCE ) Affirmed
CORPORATION, FREELANCE ) and
SEARCHES, INC., and ) Remanded
SEAN MAHONEY, )
)
Third Party Defendants. )
JUDGMENT
This cause came on to be heard upon the record on appeal from the
Chancery Court of Sumner County, briefs and argument of counsel; upon
consideration whereof, this Court is of the opinion that in the decree of the Chancellor
there is no reversible error.
In accordance with the opinion of the Court filed herein, it is, therefore,
ordered and decreed by this Court that the decree is affirmed. The cause is
remanded to the Chancery Court of Sumner County for the enforcement of the decree
and for the collection of the costs accrued below.
Costs of this appeal are taxed against Tim Oakley, et al., Principals, and
Kelly & Smith Law Office, Surety, for which execution may issue if necessary.
_____________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
_____________________________________
WILLIAM B. CAIN, JUDGE
_____________________________________
PATRICIA J. COTTRELL, JUDGE