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.