Fairwood Greens Homeowners Ass'n v. Young

Dore, J.

(concurring)—I also concur in affirming the trial court decision for the additional reason that the restrictive covenant of article 9, section 4 does not apply to a "motor home," which is a noncommercial vehicle.

The writing judge correctly set forth the controlling law in the subject case, which we partially repeat.

In interpreting restrictive covenants, the primary objective is to determine the intent of the parties, and *765clear and unambiguous language will be given its manifest meaning. Burton v. Douglas County, 65 Wn.2d 619, 399 P.2d 68 (1965); Gwinn v. Cleaver, 56 Wn.2d 612, 354 P.2d 913 (1960). . . . Restrictions being in derogation of the common-law right to use land for all lawful purposes, will not be extended by implication to include any use not clearly expressed, Burton v. Douglas County, supra, nor will they be aided or extended by judicial construction, Gwinn v. Cleaver, supra; Granger v. Boulls, 21 Wn.2d 597, 152 P.2d 325, 155 A.L.R. 523 (1944). . . . Public policy favors the free use of land, and doubts will be resolved in favor of the unrestricted use of property. Gwinn v. Cleaver, supra.

The trial court found upon substantial evidence that the restrictive covenant, when interpreted in its entirety, did not apply to the Youngs' motor home. The covenant heading, which reads "Business and Commercial Use of Property Prohibited," indicates an intent to prevent a homeowner from conducting a commercial business from his or her residence and to prohibit commercial vehicles from being parked at the residence and used for private purposes, regardless of whether a business or commercial enterprise is actually conducted on the property. The covenant does not restrict a party from owning a pickup truck for private use, although it would be included within the phrase "any buses, trucks and trailers of any description." I believe it is clear that article 9, section 4 of the restrictive covenant was limited to "buses, trucks and trailers of any description" used for commercial purposes, and has no application to a motor home used for a noncommercial purpose, as in the subject case.

I agree with the majority that the judgment of the trial court should be sustained.