Kirkley v. Seipelt

• Citation: 212 Md. 127,128 A.2d 430
• Decision Date: 18 January 1957
• Docket Number: No. 81,81
• Parties: Elizabeth D. KIRKLEY v. Walter H. SEIPELT et ux.
• Court: Court of Appeals of Maryland

Page 127

212 Md. 127

128 A.2d 430

Elizabeth D. KIRKLEY v. Walter H. SEIPELT et ux.

No. 81.

Court of Appeals of Maryland.

Jan. 18, 1957.

Argued by Fred E. Weisgal, Baltimore (I. William Schimmel and Stanley Sollins, Baltimore, on the brief), for appellant.

Argued by John J. Sweeney, Jr., Baltimore, for appellee

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

PRESCOTT, Judge.

This is an appeal from a decree of the Circuit Court for Baltimore County granting the complainants (appellees) the relief requested by them in their bill of complaint that the appellant be enjoined from installing or erecting metallic, hardsurfaced permanent awnings and porch covers over the windows and the porch of her residence, located at 131 Glen Argyle Avenue, Baltimore County, Maryland, and further enjoining her from making any alterations of any kind or description to her said property until and unless the external design and location thereof has been approved, in writing, by the Rodgers Forge Realty Corporation, its successors or assigns. The plaintiffs, in their bill of complaint, alleged that the erection of the aforesaid awnings constituted a violation of a restrictive covenant in a deed of assignment and lease that was binding upon both appellees and appellant. The appellant filed a combined answer and demurrer to the bill of complaint. A hearing was had on the demurrer which was overruled, and the case proceeded to trial. After a hearing, the trial court filed an opinion and a decree granting the relief prayed by the appellees. It is from this decree that the appellant brings this appeal.

Both the appellant and appellees own homes on Glen Argyle Road, a street in the Rodgers Forge development immediately outside of Baltimore City. Glen Argyle Road has twenty-one (21) houses, all of which were leased on June 1, 1951, by James Keelty & Co., Inc. to Mary H. Stromberg and in said lease, certain restrictions, conditions and covenants were imposed upon all twenty-one (21) homes.

The appellant desired to install two metal awnings on the front of her home, and it was to this proposal that the appellees objected and was the reason for the institution of the bill of complaint and issuance of a temporary injunction against the appellant. The appellees contend that the proposed metal awnings constitute a violation of paragraph two of the lease dated June 1, 1951.

Appellant's first contention is that the restrictive covenant, under which the appellees obtained relief in the trial court, is unlawful and invalid. Her counsel argue a covenant of this nature to be enforceable against a subsequent purchaser must be shown to 'run with the land' and shown not to be personal in nature, or it must be part of a uniform or general plan or scheme of development. The lease involved herein was dated June 1, 1951, and demised twenty-one lots, fourteen of which were contiguous on one side of a street, and the remaining seven were likewise contiguous to each other and directly opposite on the other side of the street. At this time, all of them were owned by James Keelty and Co., Inc. The lease contained eleven covenants that will be mentioned more in detail later, and they applied to all of the lots. In creating the covenants, this language was used: 'The following covenants and conditions are hereby entered into by the lessor, its successors and assigns, with the said lessee, her personal representatives and assigns, as a part of the consideration of the execution of this lease, to wit: * * * 'These covenants are to run with and bind the land and shall be binding on all the parties and all persons claiming under them until May 1, 1965.' * * * 'If the parties hereto * * * their successors, heirs or assigns * * * shall violate * * * any of the covenants herein, it shall be lawful for any other person or persons owning any real estate in said development * * * to prosecute any proceeding at law or in equity * * *'. Both the deed to the appellant and the one to the appellees make specific reference to the covenants. Appellees obtained their property from the James Keelty and Co., Inc., in June of 1951; and appellant obtained hers in June of 1955 from Anna M. Brewster, et vir, who, in turn, had obtained it from the James Keelty and Co., Inc., in June of 1951. Upon this statement of facts, we have no hesitation in holding these covenants did run with the land, and were not personal in nature. Spencer's case, 5 Coke 16; Glenn v. Canby, 24 Md. 127; Oak Lane Corp. v. Duke, 196 Md. 136, 139, 75 A.2d 80; Thompson on Real Property, par. 3634; Ford v. Union Trust Co. of Md., 196 Md. 112, 75 A.2d 113. In the Glenn case, this Court said: 'The established doctrine is, that a covenant to run with the land must extend to the land, so that the thing required to be done will affect the quality, value, or mode of enjoying the estate conveyed, and thus constitute a condition annexed, or appurtenant to it; there must also be a privity of estate between the contracting parties, and the covenant must be consistent with the estate to which it adheres, and of such a character that the estate will not be defeated or changed by a performance of it.' In Turner v. Brocato, 206 Md. 336, 345, 111 A.2d 855, 860, speaking through Judge Hammond, this Court also said: '* * * where the covenants in the conveyance are not expressly for or on behalf of the grantor, his heirs and assigns, they are personal and will not run with the land * * *.' We think the covenant presently under consideration meets these tests, and it was the clear and announced intention of the parties that it and the others should run with the land.

Counsel for the appellant further argue that the covenant must meet an additional test in that it must be reasonable and definite to be valid and enforceable. As stated above, the conveyance that created the covenant under attack contained eleven covenants. The ones not under attack provided: that all lots, with exceptions, should be residential lots; that no structure should be erected on any residential lot other than one attached single family dwelling or one dwelling not to exceed two and one-half stories in height for not more than two families; that each residential structure would contain a minimum area and width; that no noxious or offensive trade or activity would be carried on; that each dwelling would cost not less than a named amount; that garages would be constructed in a certain manner and of named materials; and so forth. Covenant number two, the one upon which this suit must be decided reads:

'No building shall be erected, placed, or altered on any building plot in this subdivision until the external design and location thereof have been approved, in writing, by the Rodgers Forge Realty Corp., its successors, or assigns.'

Appellant contends this fails in the test of reasonableness because there were no specific standards nor a general plan or scheme of development to guide the approving party in determining approval or disapproval of the designs and locations when submitted. We think the answer to this is contained in Peabody Heights Co. of Baltimore City v. Willson, 82 Md. 186, 32 A. 386, 387, 1077, 36 L.R.A. 393, decided by this Court in 1895. In this well-known case, the covenant read: 'No. 1. No land to be sold or leased without a pledge to build speedily, design of buildings to be approved by the directors'. (Emphasis supplied) There were no standards set out in the covenants stating what matters should be taken into consideration by the directors when determining whether to approve or disapprove a 'design'; nor was the aim or goal of the covenants stated. The covenants were short and few in number. In addition to the one above, they required the buildings to be 20 feet back of the building line; the front to be ornamental with shrubbery and flowers; that no nuisance, factories, lager beer saloons, etc., to be permitted; and 'to regulate other proceedings'. This Court held the covenant that required the design of the buildings to be approved by the directors was in all respects legal and such as the owner of land had the right to impose, and the overall object of the covenants was to secure the erection of a better class of buildings with attractive surroundings, and to prevent the construction of inferior ones that might diminish the value of the remaining property and affect its eligibility for building purposes. Cf. Sowers v. Vestry Church of the Holy Nativity, 149 Md. 434, 131 A. 785.

A similar covenant was before this Court in Jones v. Northwest Real Estate Co., 149 Md. 271, 131 A. 446. It required submission of the plans and specifications to the Northwest Real Estate Co. and approval of them by it before any building, fence, wall or other structure should be commenced, and gave the Company the right to disapprove any plans or specifications that were not suitable or desirable. There were some standards set out in the covenant to guide the approval or disapproval of the designs. This Court specifically held this covenant was not unreasonable and upheld its validity, noting, however, and remarking upon the drastic control given to the Company over the buildings to be erected. The Court announced the general rule to be, that where the intention of the parties is clear, and the restrictions within reasonable bounds, they will be upheld.

There can be no question as to the intention of the parties in the case at bar. The language used in the covenants, partly quoted above, makes plain the desire to regulate the construction of the dwellings in such a manner as to create an attractive and desirable neighborhood. We think the parties had a right voluntarily to make this kind of a contract between themselves; and the covenant does not create any...