Burns v. Baumgardner
| Decision Date | 06 August 1982 |
| Parties | Robert C. BURNS and Nancy M. Burns, his wife, and John Franklin Destefan and Patricia M. Destefan, his wife, Appellees, v. Richard L. BAUMGARDNER and Marcia H. Baumgardner, his wife, Appellants. |
| Court | Pennsylvania Superior Court |
Harvey Freedenberg, Harrisburg, for appellants.
Thomas M. Painter, Waynesboro, submitted a brief on behalf of appellees.
Before PRICE, WIEAND and LIPEZ, JJ.
In this equity action, the chancellor imposed building restrictions by implication and enjoined the construction of townhouses on a development tract in Washington Township, Franklin County. When exceptions were overruled and a final decree entered, this appeal followed. 1 We reverse.
In May, 1966, Dwight and Leona Grove and Richard and Marcia Baumgardner acquired a 175 acre tract in Franklin County. The entire tract was surveyed between May 2, 1966, and October 17, 1966, and a preliminary plan was prepared but never recorded. On November 26, 1966, a plot plan was prepared by Arrowood, Incorporated, for "Sheffield Manor Phase 1" and recorded. It included lots 1 to 12 of Section D. On March 28, 1967, the owners caused to be recorded a Declaration of Restrictive and Protective Covenants in Deed Book Vol. 612, Page 786. This declaration, dated March 9, 1967, pertained to and was limited to lots included in Sheffield Manor Phase No. 1 as shown on plan prepared by Arrowood, Incorporated, dated November 25, 1966. It provided, inter alia, as follows:
1. LAND USE AND BUILDING TYPE: No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed two and one-half stories in height and private two car garage. All buildings shall be constructed of brick, stone or other non-combustible material, except that no building may be constructed of unfaced concrete blocks and no building may be faced with stucco. Wood construction may be used above the square of the building. (emphasis supplied). 2
On November 7, 1967, a plan entitled "Sheffield Manor Phase 2" was prepared and subsequently recorded. It laid out lots 13 to 27 of Section C and lots 1 to 5 of Section B. On May 20, 1968, a declaration of building restrictions was recorded which imposed upon Phase 2 the same restrictions previously imposed upon Phase 1.
From these two sections, various lots were sold and conveyed. John and Patricia Destefan, the appellees, purchased lot 27 on June 27, 1968. Their deed recited that the lot was subject to the restrictive covenants previously imposed.
On July 12, 1973, Dwight and Leona Grove conveyed their interest in the remaining tract to Richard and Marcia Baumgardner. Their deed recited that the conveyance was "... subject to the restrictions set forth in the Declaration of Restrictive and Protective Covenants for Sheffield Manor, Washington Township, Franklin County, Pennsylvania, filed in the office of the Recorder of Deeds of Franklin County in Franklin County Deed Book Vol. 612, Pages 786, 787 and 788."
A subsequent declaration of restrictive covenants was executed for lots 1 and 2 and lots 28 to 39 of Section C. These restrictions, although restricting use to residential purposes, contained no requirement that residences be "detached single-family dwelling[s]."
In March, 1975, individual lot owners learned that appellants intended to erect townhouses on lots 4 to 12 of Section C. These townhouses were designed to be attached by party walls, and each was intended to cover less than one-half of a full lot. An action in equity was commenced to enjoin such construction, and an injunction was issued. The trial court found that although there were no express restrictions which prohibited the erection of townhouses, restrictions imposed upon the entire tract by implication required that only detached, single-family dwellings be erected. When exceptions were dismissed and a final decree entered, this appeal followed.
Restrictions on the use of land are not favored by the law because they are an interference with an owner's free and full enjoyment of his property. Jones v. Park Lane for Convalescents, 384 Pa. 268, 272, 120 A.2d 535, 537 (1956). See also: Witt v. Steinwehr Development Corp., 400 Pa. 609, 162 A.2d 191 (1960); McCandless v. Burn, 377 Pa. 18, 104 A.2d 123 (1954); Morean v. Duca, 287 Pa.Super. 482, 430 A.2d 988 (1981); Tate v. Moran, 264 Pa.Super. 540, 400 A.2d 217 (1979). Therefore, they are to be strictly construed. Mishkin v. Temple Beth El of Lancaster, 429 Pa. 73, 239 A.2d 800 (1968); Witt v. Steinwehr Development Corp., supra; Rieck v. Virginia Manor Co., 251 Pa.Super. 59, 380 A.2d 375 (1977). They are not to be extended by implication. Mishkin v. Temple Beth El of Lancaster, supra; Ratkovich v. Randell Homes, Inc., 403 Pa. 63, 169 A.2d 65 (1961); Peirce v. Kelner, 304 Pa. 509, 156 A. 61 (1931); DiCarlo v. Cooney, 282 Pa.Super. 477, 423 A.2d 3 (1980); Tate v. Moran, supra; Rieck v. Virginia Manor Co., supra. Indeed, every doubt is to be resolved against the existence of restrictions and in favor of a free and unrestricted use of property by its owner. Schulman v. Serrill, 432 Pa. 206, 246 A.2d 643 (1968); Mishkin v. Temple Beth El of Lancaster, supra; Sandyford Park Civic Association v. Lunnemann, 396 Pa. 537, 152 A.2d 898 (1959); Kessler v. Lower Merion Township School District, 346 Pa. 305, 30 A.2d 117 (1943); Pehlert v. Neff, 152 Pa.Super. 84, 31 A.2d 446 (1943). The fact that an owner imposes restrictions on portions of a tract does not raise an inference that he intends thereby to obligate himself to restrict similarly the remainder of his land. In every such instance there must appear definite evidence of a purpose to bind the remaining land. Price v. Anderson, 358 Pa. 209, 216, 56 A.2d 215, 219 (1948). See also: Witt v. Steinwehr Development Co., supra 400 Pa. at 613, 162 A.2d at 193.
The trial court, by inference, imposed building restrictions against the entire tract because of the "subject to" clause contained in the deed of July 12, 1973, by which Dwight and Leona Grove conveyed their interest in Sheffield Manor to appellants. This clause provided: "This property is subject to the restrictions set forth in the Declaration of Restrictive and Protective Covenants for Sheffield Manor ... filed in ... Franklin County Deed Book Vol. 612, Pages 786, 787 and 788." The provision, however, was merely an acknowledgement that building restrictions existed with respect to a portion of the tract. It did not create new restrictions or expand existing restrictions to unencumbered portions of the tract.
20 Am.Jur.2d Covenants, Conditions, and Restrictions, § 169, at 728. See also: De Sanno v. Earle, 273 Pa. 265, 117 A. 200 (1922); Smith v. Second Church of Christ, Scientist, 87 Ariz. 400, 351 P.2d 1104 (1960); Procacci v. Zacco, Fla.App., 324 So.2d 180 (1975); Wiley v. Schorr, Tex.Civ.App., 594 S.W.2d 484 (1979); Annotation, 84 A.L.R.2d 780 (1962). Smith v. Second Church of Christ, Scientist, supra, 87 Ariz. at 408, 351 P.2d at 1109.
For these reasons, we conclude that the trial judge fell into error when he attempted to infer the applicability of building restrictions to the entire tract because of the "subject to" clause contained in the deed from the Groves to the Baumgardners. This is peculiarly so where, as here, only a one-half interest in the land was conveyed.
The trial court also inferred a subjection of the entire tract to building and use restrictions from representations which had been made by Richard Baumgardner. These representations, there was evidence to show, had been made to prospective purchasers of building lots. They were to the effect that restrictions requiring single family residences would be imposed upon the entire tract. Appellants contend that even if the oral representation were construed as prohibiting townhouses, the imposition of building restrictions by parol is precluded by the Statute of Frauds. Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1. 3
An easement is within the purview of the Statute of Frauds. Haines v. Minnock Construction Company, 289 Pa.Super. 209, 216, 433 A.2d 30, 33 (1981), citing Yeakle v. Jacob, 33 Pa. 376 (1859). An easement is a liberty, privilege, or advantage which one may have in the lands of another; it...
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