Lakeshore Property Owners Ass'n, Inc. v. Delatte

• Decision Date: 16 April 1991
• Docket Number: No. 90-CA-0253,90-CA-0253
• Citation: 579 So.2d 1039
• Parties: LAKESHORE PROPERTY OWNERS ASSOCIATION, INC. v. Walden J. DELATTE. 579 So.2d 1039
• Court: Court of Appeal of Louisiana — District of US

Page 1039

579 So.2d 1039

LAKESHORE PROPERTY OWNERS ASSOCIATION, INC. v. Walden J. DELATTE.

No. 90-CA-0253.

579 So.2d 1039

Court of Appeal of Louisiana Fourth Circuit.

April 16, 1991.

Rehearing Denied June 18, 1991.

Victoria Lennox Bartels Wessel, Bartels & Ciaccio, New Orleans, for plaintiff.

Anthony S. Taormina, Metairie, for defendant.

Before GARRISON, BYRNES and WILLIAMS, JJ.

WILLIAMS, Judge.

In this case, defendant Walden J. Delatte appeals from a judgment rendered against him and in favor of plaintiff Lakeshore Property Owners Association, Inc. The judgment enjoins him "from increasing the use of his residence located at 528 Topaz Street in Western Lakeshore Subdivision beyond the 2,310 feet maximum coverage ..." and further enjoins him "from increasing the combined use area of his residence and garage beyond the 2,510 feet maximum provided in Section VI of the Restrictive Covenants affecting said residence." ¹ Delatte claims the trial court erred in issuing the injunction because the building restrictions on lot coverage affecting his residence are invalid or, alternatively, have been abandoned. As we disagree with Delatte's assertions, we affirm.

POSTURE OF THE CASE

On September 5, 1986, the Lakeshore Property Owners Association filed a petition for mandatory and injunctive relief against Delatte because his proposed garage allegedly violates Sections II and VI of the building restrictions recorded in the Orleans Parish conveyance records and noted in his title. Section VI of the restrictions limit construction to 30% lot coverage. As proposed, Delatte's garage would create an 81 foot violation.

Delatte answered the petition and filed a reconventional demand which claimed past discriminatory enforcement of the restrictions. Subsequently, he filed a peremptory exception raising the objections of no right of action, no cause of action, prescription and res judicata. The exception was overruled on October 13, 1986. Following trial, the court rendered judgment on December 22, 1986, permanently enjoining Delatte from constructing his proposed garage and dismissing his reconventional demand. Delatte appealed.

In Lakeshore Property Owners Ass'n, Inc. v. Delatte, 524 So.2d 126 (La.App. 4th Cir.1988), a panel of this court recognized that a plaintiff seeking an injunction must establish a violation of a restriction before the burden shifts to the defendant to prove termination or abandonment of the restriction. 524 So.2d at 129. The panel held the Association met its burden by showing Delatte's proposed garage violated the restriction. Consequently, the burden shifted to Delatte to prove termination or abandonment of the restriction by a preponderance of the evidence. 524 So.2d at 130. Nevertheless, as the trial court committed reversible error by failing to consider the Gerrets case, a case in which the Association unsuccessfully attempted to enforce the same building restriction against another owner, the panel did not determine whether Delatte met his burden. Instead, the judgment was reversed and the case was remanded for consideration of all relevant evidence on the issue of abandonment. 524 So.2d at 132.

On remand on June 28, 1988, the parties stipulated that Lakeshore Subdivision is divided into two halves, East and West Lakeshore Subdivisions, geographically divided by Canal Boulevard from Robert E. Lee Boulevard to Lake Pontchartrain, that Delatte is the owner and resident of 528 Topaz Street in West Lakeshore Subdivision, that he purchased 528 Topaz subject to building restrictions, "that construction of the garage as intended would be a violation of Section VI of the building restrictions as written, if said Section VI of the building restrictions is legally valid and/or has not been abandoned," that in 1955 a new set of building restrictions was created for the Eastern half of Lakeshore Subdivision, that the new restrictions did not contain a provision limiting coverage to 30% and no attempt has been made since 1955 to enforce 30% maximum coverage on any residence in East Lakeshore Subdivision, and that Lot 17, Square 7 and Lot 15, Square 7 are two properties in West Lakeshore Subdivision which bear improvements in violation of the 30% maximum coverage provision of Section VI. The parties also stipulated that if each of the witnesses who appeared at the first trial were called again to testify, they would give their previous testimony, and that the documents admitted into evidence at the first trial, the entire record of Lakeshore Property Owners Ass'n, Inc. v. Gerrets, C.D.C. No. 6045-451, the survey of Lakeshore Subdivision and the letter of Omer Kuebel, are exhibits.

After introducing the stipulation, the Association rested its case in chief based upon Delatte's concession that construction of his proposed garage is a violation of Section VI of the building restrictions. To meet the shifted burden of proof, Delatte introduced Kuebel's letter, the record of Lakeshore Property Owners Ass'n, Inc. v. Gerrets, and his exhibits from the first trial. He also introduced a survey of West Lakeshore Subdivision, exhibit D-6, marked to show violations of Section VI. The survey indicates the four violations shown in the Gerrets case, the two violations stipulated in joint exhibit 1, Kuebel's contested violation at 532 Crystal Street (Lot 14, Square 8), and Delatte's violation at 528 Topaz Street. ²

Thereafter, the court rendered judgment in favor of the Association, and permanently enjoined Delatte from constructing his proposed garage. The court found the six stipulated violations together with one contested violation, insufficient proof of abandonment of the 30% coverage restriction. From the written judgment signed on June 29, 1989, Delatte filed this devolutive appeal.

LEGAL PRECEPTS ON BUILDING RESTRICTIONS

Prior to 1977, Louisiana law on building restrictions was a creature of jurisprudence. Acts 1977, No. 170, Expose des Motifs; LSA-C.C. art. 775, Comment (b). However, Acts 1977, No. 170, effective January 1, 1978, revised Title V of Book II of the Louisiana Civil Code of 1870, by repealing Articles 823 through 855 on fixing limits and surveying lands, and by enacting articles 775 through 783 on building restrictions. ³ This revision classified building restrictions as sui generis real rights akin to predial servitudes. Expose des Motifs, supra; LSA-C.C. art. 775, Comment (c); Yiannopoulos, Louisiana Civil Law Treatise, Vol. II, Sect. 161 (1980); Edwards v. Wiseman, 198 La. 382, 3 So.2d 661 (1941) [building restriction clauses constitute real rights running with the land]; Camelot Citizens Ass'n v. Stevens, 329 So.2d 847 (La.App. 1st Cir.1976), writ den., 333 So.2d 242 (La.1976).

Building restrictions are now regulated by LSA-C.C. arts. 775 through 783 and by "application of the rules governing predial servitudes to the extent that their application is compatible with the nature of building restrictions." LSA-C.C. art. 777; Yiannopoulos, supra.

Unlike predial servitudes, building restrictions may be imposed even in the absence of a dominant estate. LSA-C.C. art. 775, Comment (c). To create building restrictions as sui generis real rights, the owner(s) of the immovable(s) must impose charges governing building standards, specified uses, and improvements, in pursuance of a general plan which is feasible and capable of being preserved. Id.; LSA-C.C. art. 775; LSA-C.C. art. 776. The building restrictions must be created by title (juridical act) and, in order to be effective against third persons, must be recorded. LSA-C.C. art. 776, Comment (d).

Building restrictions may be enforced by mandatory and prohibitory injunctions without regard to the limitations of LSA-C.C.P. art. 3601. These actions to protect and enforce may be brought against any violator by the persons entitled to the property rights. ⁴ LSA-C.C. art. 779, Comment (b) citing Willis v. New Orleans East Unit of Jehovah's Witnesses, Inc., 156 So.2d 310, 313 (La.App. 4th Cir.1963), writ den., 245 La. 88, 157 So.2d 232 (1963); Edwards v. Wiseman, supra [building restriction clauses constitute real rights, not personal to the vendor, and inure to the benefit of all other grantees]. Consequently, as every landowner in a subdivision which is subject to building restrictions is adversely affected by violations of the restrictions, each has a substantive right as well as procedural standing to enforce the subdivision's building restrictions. LSA-C.C. art. 779, Comment (c). See also Camelot Citizens Ass'n v. Stevens, supra [building restrictions are valid and enforceable where inserted in deeds in pursuance of a general plan devised by the ancestor to maintain certain building standards; such restrictions inure to the benefit of all other grantees under a general plan of development and are real rights running with the land, which the grantees or their successors in title may enforce by injunctive proceedings].

Building restrictions terminate as provided in the act that establishes them. LSA-C.C. art. 780. In the absence of such provision, if the building restrictions have been in effect for at least fifteen years the restrictions may be amended or terminated for the whole or a part of the restricted area by agreement of owners representing more than one-half of the land area affected by the restrictions, or if the restrictions have been in effect for more than ten years the restrictions may be amended or terminated for the whole or a part of the restricted area by agreement of both owners representing two-thirds of the land area affected and two-thirds of the owners of the land affected by the restriction. LSA-C.C. art. 780, as amended by Acts 1980, No. 310, and Acts 1983, No. 129. ⁵

No action for injunction or for damages on account of the violation of building restrictions may be brought after two years from the commencement of the noticeable violation. LSA-C.C. art. 781; former LSA-R.S. 9:5622. After the lapse of this...