Present: All the Justices
ADRIENNE A. BARRIS, ET AL.
OPINION BY
v. Record No. 031915 JUSTICE LAWRENCE L. KOONTZ, JR.
June 10, 2004
KESWICK HOMES, L.L.C.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
In this appeal, we consider whether the circuit court
correctly ruled that a particular lot in a residential
subdivision is no longer subject to a restrictive covenant
prohibiting the resubdivision of lots in that subdivision.
BACKGROUND
By a recorded deed of dedication and plat dated December
14, 1948, Manning Gasch and Hilda L. Gasch subdivided a tract of
land in Fairfax County to create the Prospect Hill residential
subdivision. Prospect Hill contained 17 lots, the majority of
which consisted of more than five acres. The deed of dedication
imposed various restrictive covenants, expressly "running with
the land," on all the lots. Relevant to this appeal,
restrictive covenant No. 3 (the restrictive covenant) provided
"[t]hat there shall be no resubdivision of any of said lots,
without the written consent of three-fourths of the then owners
of lots in said subdivision."
Between 1948 and 1984, the original lots in Prospect Hill
were sold to various owners. During that period, homes were
constructed on some lots and other lots remained undeveloped.
In 1984, the owners of various lots including Lot 7,
constituting just over three-fourths of the then lot owners,
entered into a series of agreements to permit the resubdivision
of their lots. These agreements were set out in a number of
instruments, subsequently recorded in the land records of
Fairfax County. One of those instruments, dated July 25, 1984,
quoted verbatim the language of the restrictive covenant and
expressed the lot owners' agreement to "vacate and release" the
restrictive covenant with respect to Lot 7 and that Lot 7 "shall
not be subject to said restriction." This instrument further
required "that there be no resubdivision of less than two acres
per lot."1
The record does not disclose the date or manner in which
the lots purportedly released from the restrictive covenant were
resubdivided. However, a recent tax map of Prospect Hill,
attached as an exhibit to a pleading, shows that each lot
covered by the 1984 instruments has been resubdivided. Lot 7A,
which is the property at issue in this appeal, was created when
Lot 7 was resubdivided in accord with the July 25, 1984
1
Each of the 1984 instruments was individually denoted as a
"release of covenant." For clarity, we will hereafter refer to
the instrument pertaining to Lot 7 as the "July 25, 1984
instrument."
2
instrument. The remaining part of Lot 7 was combined with a
part of original Lot 8. Lot 7A appears to consist of
approximately 5 acres.
In a bill of complaint filed in the Circuit Court of
Fairfax County on November 8, 2002, Adrienne A. Barris, Peter J.
Barris, Joyce C. Gibson, Steven H. Gibson, Holly Rudkin, and
Robert E. Vagley, current owners of lots in Prospect Hill
(collectively, Barris),2 alleged that Keswick Homes, L.L.C.
(Keswick Homes), the current owner of Lot 7A, was seeking
"county approval for re-subdivision of Lot 7A without the
consent required by the [r]estrictive [c]ovenant." Asserting
that they had the right to enforce the restrictive covenant
against Lot 7A, Barris sought an injunction against Keswick
Homes to prohibit it from resubdividing Lot 7A without first
obtaining permission from three-fourths of Prospect Hill's
current lot owners.3
On December 13, 2002, Keswick Homes filed an answer to the
bill of complaint, asserting on various grounds that Lot 7A was
2
Cornwell G. Appleby and Nancy O. Appleby, current owners
of lot 8B, also joined in the bill of complaint. The Applebys
are not parties to this appeal.
3
In the alternative, Barris asserted a claim for injunctive
relief based on an implied reciprocal negative easement and
equitable servitudes. Because the chancellor did not expressly
rule on this issue, this appeal is limited to the current
enforceability of the restrictive covenant against Lot 7A.
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not subject to the restrictive covenant. Thereafter, Keswick
Homes filed a motion for summary judgment and supporting brief
asserting that the July 25, 1984 instrument released original
Lot 7 from the restrictive covenant and because Lot 7A is a part
of that lot, the July 25, 1984 instrument also released Lot 7A.
Keswick Homes asserted in the alternative that the doctrine of
estoppel by deed barred Barris from denying the effectiveness of
the July 25, 1984 instrument as a release of the restrictive
covenant because each of the Barris' predecessors in title had
executed that instrument. In a responding brief, Barris
contested Keswick Homes' assertions.
On May 16, 2003, the chancellor conducted a hearing on
Keswick Homes' motion for summary judgment. The chancellor
ruled in open court that the July 25, 1984 instrument released
Lot 7 from the restrictive covenant as permitted by the terms of
the deed of dedication and the effect of that release applied to
Lot 7A. The chancellor further ruled that the complainants were
estopped from challenging the resubdivision of Lot 7A so long as
lots of less than 2 acres are not created by the resubdivision
of that lot. An order granting summary judgment to Keswick
Homes on these grounds was entered at the conclusion of the
hearing. We awarded Barris this appeal.
DISCUSSION
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The chancellor's judgment was based solely upon his
interpretation of the restrictive covenant in the 1948 deed of
dedication of the Prospect Hill subdivision and the July 25,
1984 instrument purporting to release Lot 7 from that covenant.
We will review the chancellor's interpretation of that covenant
and written agreement de novo. Perel v. Brannan, 267 Va. 691,
698, 594 S.E.2d 899, 903 (2004); see also Wilson v. Holyfield,
227 Va. 184, 187-88, 313 S.E.2d 396, 398 (1984).
It is a well established principle that restrictive
covenants on land are not favored and must be strictly
construed. Anderson v. Lake Arrowhead Civic Association, 253
Va. 264, 269, 483 S.E.2d 209, 212 (1997). "Substantial doubt or
ambiguity is to be resolved against the restrictions and in
favor of the free use of property." Id. at 269-70, 483 S.E.2d
at 212. However, when the terms of a restrictive covenant "are
clear and unambiguous, the language used will be taken in its
ordinary signification, and the plain meaning will be ascribed
to it." Marriott Corp. v. Combined Properties, L.P., 239 Va.
506, 512, 391 S.E.2d 313, 316 (1990); see also Foods First, Inc.
v. Gables Associates, 244 Va. 180, 182, 418 S.E.2d 888, 889
(1992). Generally, a restrictive covenant cannot be modified or
terminated except by agreement of all the parties entitled to
enforce the covenant. However, the covenant may provide for a
mechanism by which the parties, or some number of them, may
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modify or terminate the restriction. Hening v. Maynard, 227 Va.
113, 117, 313 S.E.2d 379, 382 (1984); see Minner v. City of
Lynchburg, 204 Va. 180, 188-90, 129 S.E.2d 673, 679-80
(1963)(applying same standard to implied restrictive covenant).
These principles guide our initial considerations in the present
case.
Keswick Homes essentially contends that the language of the
restrictive covenant at issue here permits three-fourths of the
lot owners to modify the covenant by exempting a particular lot
from the restriction against resubdivision in perpetuity,
subject to any terms the subscribing lot owners may require.
Barris asserts that the proper construction of the covenant
would permit a lot owner to make a one-time resubdivision of a
lot by obtaining the consent of three-fourths of the lot owners
at the time of the resubdivision. We agree with Barris.
The language of the restrictive covenant is clear and
unambiguous. It expressly provides that no lot within Prospect
Hill may be resubdivided "without the written consent of three-
fourths of the then owners of lots in said subdivision."
(Emphasis added). The plain meaning of these words is that
before any resubdivision of a lot is permissible, consent must
be obtained from at least three-fourths of the other owners of
lots at the time the resubdivision is sought. The express
language of the restrictive covenant excludes an interpretation
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that the covenant permits three-fourths of the lot owners to
grant a perpetual release of a lot from the restriction on
resubdivision.
Since the restrictive covenant does not grant three-fourths
of the then lot owners the authority to grant a perpetual
release of a lot from the covenant, the chancellor erred in
interpreting the July 25, 1984 instrument purporting to release
Lot 7 from the covenant as having that effect. Rather, because
this instrument recites the language of the restrictive
covenant, it must be interpreted as reflecting the intent of the
parties to give consent consistent with the provisions regarding
consent contained in the covenant. That interpretation is not
altered simply by the fact that the July 25, 1984 instrument was
inartfully styled as a "release of covenant" and contained the
language that Lot 7 "shall not be subject to . . . said
restriction" so as to give the impression that a perpetual
release from the covenant was intended. Accordingly, it follows
that Lot 7A, which resulted from the previous resubdivision of
the original Lot 7, remains subject to the restrictive covenant.
Because the restrictive covenant expressly runs with the
land pursuant to the provisions of the 1948 deed of dedication
of the Prospect Hill subdivision, the resubdivision of Lot 7A is
prohibited without the consent of three-fourths of the current
lot owners. It is self-evident that the permitted
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resubdivisions of various lots in Prospect Hill since 1984 have
resulted in an increase in the number of lot owners and,
consequently, a proportionate increase in the number of lot
owners whose consent will be required for a resubdivision of Lot
7A. The tax map in the record shows that Prospect Hill now
contains no fewer than 27 lots, with the result that consent of
at least 21 lot owners is required before Lot 7A may be
resubdivided.
Keswick Homes contends, however, that even if the July 25,
1984 instrument did not effectively release Lot 7A from the
restrictive covenant so as to permit its further resubdivision,
the lot owners who subscribed to that instrument nonetheless
surrendered their rights, and consequently the rights of their
successors in interest, to enforce the covenant against Lot 7A
under the doctrine of estoppel by deed. The thrust of Keswick
Homes' contention is that whether the parties to the July 25,
1984 instrument had the authority or intent to release Lot 7
from the covenant in perpetuity, that is the effect of the
language of the instruments. Therefore, those parties and their
successors in interest may not now deny that effect. We
disagree.
In general, the doctrine of estoppel by deed provides that
equity will not permit a grantor, or one in privity with him, to
assert anything in derogation of an instrument concerning an
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interest in real or personal property as against the grantee or
his successors. See Virginia Electric & Power Co. v.
Buchwalter, 228 Va. 684, 688, 325 S.E.2d 95, 97 (1985); School
Board of Sand Lick District v. Smith, 134 Va. 98, 104, 113 S.E.
868, 869 (1922). However, as has been demonstrated, the clear
intent of the parties to the July 25, 1984 instrument was to
give effect to the authority granted by the restrictive covenant
to consent to a one-time resubdivision of Lot 7 and that
resubdivision has occurred.
Thus, enforcement of the restrictive covenant against a lot
created by the one-time resubdivision of Lot 7 would not be in
derogation of the July 25, 1984 instrument. Accordingly, we
hold that the chancellor erred in ruling that the complainants
were estopped from enforcing the restrictive covenant against
Lot 7A.
CONCLUSION
For these reasons, we hold that the chancellor erred in
granting summary judgment to Keswick Homes. We will reverse
that judgment and remand the case for further proceedings
consistent with the views expressed in this opinion.
Reversed and remanded.
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