Francis v. Rios

• Decision Date: 22 November 1972
• Docket Number: Civ. No. 432/1972.
• Citation: 350 F. Supp. 1130
• Parties: Alphonso FRANCIS et al., Plaintiffs, v. Wilfredo RIOS, Defendant.
• Court: U.S. District Court — Virgin Islands

350 F. Supp. 1130

Alphonso FRANCIS et al., Plaintiffs, v. Wilfredo RIOS, Defendant.

Civ. No. 432/1972.

District Court, Virgin Islands, D. St. Croix.

November 22, 1972.

Bryant, Costello & Burke, Christiansted, St. Croix, V. I., for plaintiffs.

Derek M. Hodge, Christiansted, St. Croix, V. I., for defendant.

MEMORANDUM OPINION AND JUDGMENT

WARREN H. YOUNG, District Judge.

Plaintiffs seek to enjoin defendant from using as a bar and poolroom, a building, the construction of which is substantially completed. The facts are not complex and are undisputed.

Plaintiff Alphonso Francis owns Plot 118 of Estate Glynn, having purchased it in 1968 from the subdivision developer Glynn Garden Estates, a limited partnership. Defendant Wilfredo Rios owns Plot 42 in the same subdivision, having purchased it in 1970 from Virginia Shaubah, who originally purchased it from Glynn Garden Estates.

The developer, Glynn Garden Estates, had a standard form of deed, which subjected all conveyances to a "declaration of conditions, covenants, restrictions and agreements, all of which shall be covenants running with the land; all of which restrictions shall be placed upon all plots in said subdivision . . ." Paragraph 4 of those restrictions reads as follows:

No trade or business shall be conducted upon the premises except on Plot 45-A, 45, 46, 47, 59, 60, 61, 64, 65, 66, and 67, which are hereby designated as limited commercial plots, and nothing shall be maintained or constructed on said plots which shall be an annoyance or nuisance to the neighborhood . . .

Virginia Shaubah received title to Plot 42 by such a deed, but in her deed to defendant Rios, she merely recited that the property in question was "subject to all conditions, covenants and restrictions as of public record appear".

About five months after Rios acquired Plot 42, he applied to the Planning Board for a special exception and variance to build on said plot a bar and poolroom. Plot 42 was zoned R-10 (one or two family residential; 29 V.I.C. § 266). Statutory notice (posting on a tree) of the Planning Board hearing was made; the hearing was duly held with no opposition registered to the requested exception. On June 7, 1971, Rios received approval of the special exception. The written approval characterized the bar-poolroom building as a "community facility". Rios commenced construction on July 1, 1972.

Plaintiffs Alphonso Francis and Glynn Garden Estates Homeowners' Association, an unincorporated homeowners' group, filed this suit on August 4, 1972, to enjoin further construction of the building for its proposed use as a bar-poolroom.

The parties agree and acknowledge that within the subdivision there have been numerous violations of the restrictive covenants. Twenty-seven plots (out of a total of about 200) have shacks built on them, contrary to the $7,000 minimum construction cost restriction. Three plots in the residential area have small neighborhood-type commercial stores (two grocery stores and one dry goods store). Moreover, applications have been made and are now pending before the Planning Board for special exceptions to construct commercial or combined commercial-residential buildings in the residential area of the subdivision (plots 45-B, 155, 120, 32 and 87), to be used for business related activities.

In order to resolve this conflict, the Court is called upon to determine the following issues: first, whether the nature of the community has changed so as to render the restrictive covenants barring commercial activity useless; second, whether failure to object to past violations of this covenant and others constitutes a waiver of the rights to enforce; and, third, whether delay in filing this suit for injunctive relief constitutes waiver.

Two cases in this jurisdiction have been decided on issues similar to that presented here. See Neal v. Grapetree Bay Hotels, Inc., 8 V.I. 267 (1971); Grubel v. MacLaughlin, 6 V.I. 490, 286 F.Supp. 24 (1968). However, the case at hand does not reach the major question settled in Grubel, for no new zoning ordinance has been placed in effect which would negate the enforcement of the restrictive covenant. The Neal case seems to be most on point and, to the extent that it is applicable, represents the controlling law. The Court in Neal held, among other things, that past acceptance of violations of the restrictive covenants does not necessarily constitute a bar to suits enjoining later violations. The rule of Neal is generally consistent with the law in other jurisdictions. However, the rule must be considered in the factual context of each case as to the character and materiality of the breach. Eichelsbach v. Harding, 309 S.W.2d 681 (Mo.App.1958).

Glynn Garden Estates was developed as a residential community. The covenants in the deeds from the common grantor were placed on the land as an expression of a desire to preserve the nature of the original residential development scheme. To this end, commercial activity was authorized only upon the plots specifically set aside for such purposes in the deeds. It is only when the nature of the peripheral neighborhood has changed that restrictive covenants, otherwise valid, become ineffective and are stricken down by the courts. So long as past breaches of use restrictions have not denigrated the original development scheme, courts will enforce the covenants. Rome v. Rehfuss, 391 Pa. 82, 137 A.2d 233 (1958). From the evidence in the record supplemented by my on-site inspection of the subdivision, I find that the subdivision is first and foremost a residential community. There is no evidence of an abandonment of the original development scheme. I must conclude that the covenants restricting the use of the land to residential use still have value and may be enforced.

The next question to be treated is whether the 27 violations of the minimum construction cost restriction and the 3 violations of the residential use restriction now tolerated in the area constitute a waiver of the right to enforce the residential use covenant involved in this case. Minor violations of restrictive covenants ordinarily do not constitute a waiver of the right to enforce. Henricks v. Bowles, 20 Ill.App.2d 148, 155 N.E.2d 664 (1959). The parties have stipulated that the 27 shacks are violations of the covenants. However, even where there are apparent and obvious violations of restrictions of the number involved here, courts have been reluctant to indicate that a waiver has occurred. Carey v. Lauhoff, 301 Mich. 168, 3 N.W.2d 67 (1942) (23 violations out of 189 lots). It is important to note that the 27 minimum construction cost violations are not violations of the use covenant in controversy here. Defendant's building, which is now almost finished, has an exterior design almost identical with the neighboring houses. Aesthetically the building can be taken for a residence, but, to serve its commercial purpose, it will undoubtedly have one or more signs to distinguish it as a bar-poolroom. What remains to be determined is whether the failure to object to the present three violations of the use restriction (two neighborhood...