Holiday Acres Property Owners Ass'n v. Wise, 99CA0044.

• Decision Date: 16 March 2000
• Docket Number: No. 99CA0044.,99CA0044.
• Citation: 998 P.2d 1106
• Parties: HOLIDAY ACRES PROPERTY OWNERS ASSOCIATION, INC., a Colorado non-profit corporation, Plaintiff-Appellant, v. James R. WISE, Shannon K. Wise, Carl G. Wise, Rodney J. Cruz, Rebecca J. Cruz, Walter S. Moore, Kim A. Moore, Charles R. Allen and Stephanie L. Martin, Defendants-Appellees.
• Court: Colorado Court of Appeals

998 P.2d 1106

HOLIDAY ACRES PROPERTY OWNERS ASSOCIATION, INC., a Colorado non-profit corporation, Plaintiff-Appellant, v. James R. WISE, Shannon K. Wise, Carl G. Wise, Rodney J. Cruz, Rebecca J. Cruz, Walter S. Moore, Kim A. Moore, Charles R. Allen and Stephanie L. Martin, Defendants-Appellees.

No. 99CA0044.

Colorado Court of Appeals, Division III.

March 16, 2000.

As Modified on Denial of Rehearing July 6, 2000.

Gerald Sawatzky, Pagosa Springs, Colorado, for Plaintiff-Appellant.

Crane, Leake, Casey, Ehlers & Eggleston, Duke Eggleston, Durango, Colorado, for Defendants-Appellees.

Opinion by Judge JONES.

Plaintiff, Holiday Acres Property Owners Association, Inc. (Association), appeals the judgment entered, after a trial to the court, denying its request for a mandatory injunction against defendants, James R., Shannon K., and Carl G. Wise; Rodney J. and Rebecca J. Cruz; Walter S. and Kim A. Moore; Charles R. Allen; and Stephanie L. Martin. We affirm.

Chuck and Phyllis Bogert (general partners) formed a limited partnership, known as Holiday Acres, in order to develop a 500-acre subdivision consisting of 169 lots. The dispute here relates to the interpretation of paragraph 9 of the protective covenants recorded with Archuleta County, on May 17, 1974, that purport to restrict the use of mobile homes in the Holiday Acres subdivision. Paragraph 9, as amended in October 1976, provides:

No trailer, camper, mobile home, or motor home shall be used at any time as a permanent residence except use of a trailer, camper, mobile home or motor home may be permitted during the above mentioned one year period permitted for construction and, in addition, may be used for periods of vacation use, but total vacation usage by any one owner may not exceed six (6) months in any calendar year.

The restrictive covenants also required that Holiday Acres approve any "building, fence, patio, or other structure" prior to construction. Thus, in response to inquiries from property owners, one of the general partners, who was also the sole member of the architectural committee, interpreted the mobile home provision as follows, in a letter:

This is to inform you that double wide modular homes are permitted in Holiday Acres as long as they are permanently attached to the foundation. The tongues and axles must also be removed.

There are numerous homes of this type in Holiday Acres and [they] are accepted by the community. In the [covenants] mention is made of no mobile homes, meaning no single-wide mobile homes.

Accordingly, during the fall and summer of 1996, defendants proceeded to construct double-wide mobile homes on their lots. Other property owners perceived defendants' double-wide mobile homes as a threat to the value of the property in the subdivision. Therefore, on August 29, 1996, the owners called a meeting to establish a property owners' association with the stated purpose of enforcing the restrictive covenants. The Association was formed pursuant to the following provision in the covenants:

When sixty (60) per cent or more of the tracts in the above described lands have been sold, the owners of such tracts may form a committee of such size and representation as may be agreed upon by a majority of such owners, which committee may undertake the obligation imposed upon Holiday Acres by paragraph 6 of these covenants.

After its incorporation, on September 27, 1996, the Association promptly notified defendants here that their double-wide mobile homes violated the restrictive covenants and, furthermore, warned one defendant not to proceed with his plans to relocate a double-wide mobile home to Holiday Acres from another area in Colorado.

Based on these perceived violations, the Association sought a mandatory injunction to compel defendants to remove the double-wide mobile homes from their lots. The trial court denied the plaintiff's requested injunctive relief, and this appeal followed.

I.

The Association contends that the trial court erred in determining that it was equitably estopped from enforcing the covenant restricting the use of mobile homes. We perceive no error.

In an order dated June 17, 1998, the first judge to consider this case concluded that the term "mobile homes" as used in the covenants is not ambiguous, and, as a matter of law, prohibits double-wide structures from Holiday Acres, but did not order the structures removed. Because the parties differ on this point, we first consider whether the meaning of the term "mobile home" as used in the original and amended restrictive covenants is ambiguous as to whether it includes all types of factory built housing. We conclude that it is.

Interpretation and construction of covenants is a question of law which we review de novo. In the absence of contrary equitable or legal considerations, protective covenants that are clear on their face must be enforced as written. Rossman v. Seasons at Tiara Rado Associates, 943 P.2d 34 (Colo. App.1996).

Rules of construction for determining whether provisions of a document are ambiguous are applicable to protective covenants. Hallmark Building Company v. Westland Meadows Owners Ass'n, Inc., 983 P.2d 170 (Colo.App.1999).

A written instrument is ambiguous when it is reasonably susceptible to more than one meaning, or where there is uncertainty as to the meaning of a term. Ad Two, Inc. v. City & County of Denver, 983 P.2d 128 (Colo.App.1999)(cert. granted Sept. 13, 1999).

The Association argues that the term "mobile home" as used in these covenants is unambiguous. It refers to the June 17th order in defining "mobile home" to include: a dwelling built upon a permanent chassis or frame, towed to the residential site utilizing axles and wheels that are attached to the chassis, and designed to be used without permanent foundation. Further, it argues that Tucker v. Wolfe, 968 P.2d 179 (Colo.App. 1998), compels the conclusion that the covenant prohibiting mobile homes cannot be expanded to prohibit modular homes.

There are indeed differences in the construction of trailer homes and mobile, modular, manufactured, and Department of Housing and Urban Development (HUD) sanctioned, and Uniform Building Code (UBC) sanctioned mobile homes. However, various bodies of law use the terms interchangeably. Therefore, we conclude that the term "mobile home," as used in the covenants here, is ambiguous. See State of Colorado, Division of Housing, Brief History of Colorado Homes That Were Built in a Factory, (1998)(for the most part, people use the terms mobile, modular, manufactured, HUD, UBC, and trailer interchangeably when referring to homes built in a factory).

For instance, in 1988, the Federal National Mobile Home Construction and Safety Standards Act was renamed the Federal Manufactured Housing Act. 42 U.S.C. § 5401, et seq. (1988). In Colorado, from 1931 through 1982, wheeled vehicles having a residential purpose were referred to in the statutes as "trailer coaches" and "mobile homes." See, e.g., Colo. Sess. Laws 1931, § 1 at 485. In 1983, the General Assembly abandoned use of those terms and replaced them with the phrase "manufactured home" throughout what is now known as the "Title to Manufactured Homes Act," found at § 38-29-101, et seq., C.R.S.1999. See Colo. Sess. Laws 1983, ch. 417, § 38-29-102 at 1448; Colo. Sess. Laws 1989, ch. 122 at 712.

Furthermore, in Tucker, a division of this court determined that "trailer houses" were mutually exclusive of double-wide mobile homes and manufactured housing. In making that distinction, the court emphasized the similarities between double-wide mobile homes and manufactured housing as follows:

[T]hese forms of housing, although transported to a building site on wheels

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