Sloan v. Johnson

Present: Carrico, C.J., Compton, Stephenson, * Hassell,
Keenan, and Koontz, JJ., and Poff, Senior Justice

DAVID K. SLOAN, ET AL.
                    OPINION BY JUSTICE LEROY R. HASSELL, SR.
v.   Record No. 962264         September 12, 1997

MILTON F. JOHNSON, ET AL.

         FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
              Charles H. Duff, Judge Designate


     In this appeal, we consider whether owners of certain

lots in a subdivision may enforce express covenants that run

with the land.
     Arlington Investment Corporation conveyed approximately

25 acres of land to Jonathan R. Hagan in 1932.   From this

grant, Hagan created a subdivision known as "Forest Park

Addition to Waycroft" by plat of subdivision.

     By deed dated July 11, 1934, Hagan and his wife

conveyed part of Lot 13 and all of Lot 14 in the subdivision

to J. Frederick Abel and his wife as joint tenants.    The

deed contained this express language:
     "This conveyance is made subject to the following
     conditions and restrictions which shall remain in
     force until July 1, 1943, and shall then be
     automatically renewed for a period of ten years
     and shall be automatically renewed every ten years
     thereafter:

                            . . . .

          4. Not more than one residence shall be
     erected upon this lot, the cost of which shall be
     not less than $4,000.00."


     Alberta C. Abel, "the unremarried widow of J. Frederick
     *
      Justice Stephenson participated in the hearing and
decision of this case prior to the effective date of his
retirement on July 1, 1997.
Abel," conveyed this property to Alberta C. Abel and Selina

A. Taylor, trustees of the Alberta C. Abel Trust.   This

conveyance was made subject to "the restrictions and

conditions contained in the deed forming the chain of title

to [the] property."

     Hagan conveyed Lot 11 in the subdivision to Joseph L.

Gaddy in 1936.    That deed contained the same restriction

included in the Hagans' deed to Abel.   Gaddy and his wife

conveyed their property to James T. and Eva J. Newman by

deed which stated that the conveyance was made subject to

the restrictions and limitations of record.   The Newmans

conveyed their property to Jack H. and Thelma A. Foster who

subsequently conveyed the property, by deed, to David K. and

Robyn D. Sloan.    These deeds contain provisions that each

conveyance was made subject to the restrictions and

conditions contained in the deeds forming the chain of title

to the property.
     Jonathan Hagan conveyed Lot 12 and part of Lot 13 in

the subdivision to Cameron R. and Catherine V. Dye in 1934.

This property is located between the property owned by the

trustees of the Abel Trust and the Sloans' property.   The

deed also contained a restriction which stated that "[n]ot

more than one residence shall be erected upon this lot, the

cost of which shall be not less than $4,000.00."

     Cameron Dye, who survived his wife, died testate, and

Milton F. and Sharon A. Johnson inherited the property.      The

Johnsons filed a plan to subdivide their lot with the zoning
administrator of Arlington County.   The plan of subdivision,

which was approved by the zoning administrator, permits the

Johnsons to construct a second house on their lot.

     David and Robyn Sloan, Alberta and Selina Abel Taylor,

trustees, and others, filed their bill of complaint seeking

to enforce the restrictive covenants against Milton F.

Johnson, Sharon A. Johnson, and Potomac Custom Builders,

Inc., and to prohibit them from constructing a second

residence on the Johnson property.   Potomac Custom Builders,

Inc., was dismissed from the proceeding, and at the

conclusion of a bench trial, the chancellor held that the

covenant was unenforceable "because a general scheme or plan

of development applicable to Forest Park Addition to

Waycroft does not exist which gives other lot owners

reciprocal rights of enforcement of the restriction."    David

and Robin Sloan and Alberta and Selina Abel Taylor,

Trustees, sought and were awarded an appeal.   (Hereinafter,

the Sloans and the Trustees will be referred to as the

complainants and Milton F. and Sharon A. Johnson will be

referred to as the defendants.)
     The complainants contend that the chancellor erred by

failing to enforce the express covenants which run with

their land.   The defendants assert that the complainants are

not entitled to enforce the covenants because the

complainants' evidence failed to establish a general scheme

or plan of development imposed on lots in the subdivision.

     Covenants, express or implied, which restrict the free
use of land are not favored and must be strictly construed.

 Mid-State Equipment Co. v. Bell, 217 Va. 133, 140, 225

S.E.2d 877, 884 (1976).   We will, however, enforce such

covenants when applicable, but the person claiming the

benefit of the restrictions must prove that the covenants

are applicable to the acts of which he complains.     Id.,

accord Friedberg v. Building Committee, 218 Va. 659, 665,

239 S.E.2d 106, 110 (1977); Riordan v. Hale, 215 Va. 638,

641, 212 S.E.2d 65, 67 (1975); Stevenson v. Spivey, 132 Va.
115, 119-20, 110 S.E. 367, 368 (1922).

     We have recognized two separate and distinct types of

restrictive covenants:    the common law doctrine of covenants

running with the land and restrictive covenants in equity

known as equitable easements and equitable servitudes.       Mid-

State Equipment Co., 217 Va. at 140, 225 S.E.2d at 884;

Duvall v. Ford Leasing, 220 Va. 36, 43, 255 S.E.2d 470, 473-

74 (1979); Renn v. Whitehurst, 181 Va. 360, 366-67, 25

S.E.2d 276, 279 (1943); Springer v. Gaddy, 172 Va. 533, 541,
S.E.2d 355, 358 (1939).

     We have, on numerous occasions, thoroughly discussed

the doctrine of restrictive covenants in equity.    For

example, in Mid-State Equipment Company, we stated:       "[t]he

doctrine of restrictive covenants in equity, distinct from

the common law doctrine of covenants running with the land,

establishes rights and obligations known as equitable

easements and equitable servitudes."   217 Va. at 140, 225

S.E.2d at 884; accord Minner v. City of Lynchburg, 204 Va.
180, 187, 129 S.E.2d 673, 678 (1963); Cheatham v. Taylor,

148 Va. 26, 37, 138 S.E. 545, 548 (1927).   The doctrine is

that
       "when, on a transfer of land, there is a covenant
       or even an informal contract or understanding that
       certain restrictions in the use of the land
       conveyed shall be observed, the restrictions will
       be enforced by equity, at the suit of the party or
       parties intended to be benefited thereby, against
       any subsequent owner of the land except a
       purchaser for value without notice of the
       agreement. The principal purposes of such
       agreements are to regulate the style and costs of
       buildings to be erected on a tract that is being
       sold in parcels for building lots, to restrict
       their location to certain distances from the
       street, and to prevent buildings in a locality
       from being put up or used for any other than
       residential purposes. . . . The equity which is
       enforced prevents a third person, who has actual
       or constructive notice, from violating the
       equitable rights of another.
                            . . . .

            And where a common grantor develops land for
       sale in lots and pursues a course of conduct which
       indicates an intention to execute a general scheme
       or plan of improvement for the benefit of himself
       and the purchasers of the various lots, and by
       numerous conveyances incorporates in the deeds
       substantially uniform restrictions, conditions and
       covenants against the use of the property, the
       grantees acquire by implication the equitable
       right, sometimes referred to as an implied
       reciprocal negative easement, to enforce similar
       restrictions against the residential lot or lots
       retained by the grantor or subsequently sold
       without the restrictions to a purchaser with
       actual or constructive notice of the restrictions
       and covenants."


Mid-State Equipment Co., 217 Va. at 140-41, 225 S.E.2d at

884 (citations omitted); accord Woodward v. Morgan, 252 Va.
135, 138, 475 S.E.2d 808, 810 (1996); Burns v. Winchester

Hospital, 225 Va. 545, 548-49, 303 S.E.2d 908, 910 (1983).
     The defendants argue that the trial court, relying upon

Burns, was correct in deciding that the complainants "failed

to prove the existence of a general scheme or plan of

development which imposed a restriction on the number of

houses."   However, in Burns, we considered whether

residential owners could prevent a hospital from

constructing a multi-level parking garage in their

subdivision when the residential owners conceded that "no

language in their deeds or those of the hospital [gave] them

the explicit right to enforce restrictions contained in the

hospital's deeds."   225 Va. at 548, 303 S.E.2d at 910.
     Having conceded their inability to enforce the

restrictive covenants under the common law doctrine of

covenants running with the land, the residential owners in

Burns went on to argue that there was an equitable servitude

based upon a general scheme of development restricting the

subdivision to residential use, which prohibited the

hospital's multi-level parking garage.   The trial court held

"there was no general scheme of development in the

subdivision," id. at 549, 303 S.E.2d at 911, and we affirmed
that holding.

     Here, however, the complainants have not conceded their

inability to enforce the restriction in dispute under the

common law doctrine of covenants running with the land.    We

must first determine, therefore, whether the complainants

are entitled to enforce the restriction under that doctrine.

If so, it would be unnecessary in deciding this case to
consider whether an equitable servitude exists.

     At common law, a landowner may enforce a covenant

running with the land provided he establishes:    (1) privity

between original parties; (2) privity between original

parties and their successors; (3) an intent that the

restriction will run with the land; and (4) that the

covenant "touches and concerns" the land.    Additionally, the

conveyance must be in writing.   7 Thompson on Real Property

§ 62.03 (David A. Thomas ed., 1994); 9 Richard R. Powell and

Patrick J. Rohan, Powell on Real Property, § 60.04[.1]
(1997).

     Here, the evidence shows there was privity between the

original parties, viz., Hagan and the respective grantees in

the deeds he executed to convey the three lots involved in

this controversy, namely, the Abels, Joseph L. Gaddy, and

the Dyes.   There was also privity between the three original

grantees and their successors in interest.    The three lots

were all made subject to the restriction in dispute, and the

words used in the deeds between Hagan and the predecessors

in interest of the complainants and the defendants evinced

an intent that the limitation on the number of houses which

could be constructed on each lot would run with the land;

those words provided for the automatic renewal of the

restriction, essentially in perpetuity, negating any idea

that the restriction was personal to Hagan.   The covenant

"touches and concerns" the land because it limits the number

of houses that may be constructed upon each lot.   Finally,
the covenant is in writing.   Hence, the complainants are

entitled to enforce the restriction under the common law

doctrine of covenants running with the land.

     Accordingly, we will reverse the judgment of the trial

court and enter a declaration here that the restrictive

covenants are enforceable and that the defendants may not

construct a second house on their property.    This results in

final judgment in favor of the complainants.
                                 Reversed and final judgment.