LaValle v. Kulkay

• Decision Date: 30 March 1979
• Docket Number: No. 48307.,48307.
• Citation: LaValle v. Kulkay, 277 N.W.2d 400 (Minn. 1979)
• Parties: Lloyd M. LaVALLE, et al., Respondents, v. Faye KULKAY, et al., Appellants.
• Court: Minnesota Supreme Court

277 N.W.2d 400 (1979)

Lloyd M. LaVALLE, et al., Respondents, v.Faye KULKAY, et al., Appellants.

No. 48307.

Supreme Court of Minnesota.

March 30, 1979.

Franke, Riach & Franke and Ronald J. Riach, St. Paul, for appellants.

Melchert, Hubert, Howe & Young, Thomas R. Howe and Mac R. Willemssen, Waconia, for respondents.

Heard before ROGOSHESKE, PETERSON, and SCOTT, JJ., and considered and decided by the court en banc.

PETERSON, Justice.

Plaintiffs¹ initiated this action for injunctive relief against defendants George and Faye Kulkay, seeking to enforce a restrictive covenant in their deeds by permanently enjoining defendants from renting the basement of their residence to persons not members of their family.Defendants counterclaimed against plaintiffsLloyd M. LaValle and Margaret A. LaValle, seeking damages allegedly caused by the LaValles' placement of an in-ground swimming pool in violation of setback restrictions established in the Carver County zoning ordinance.

The trial court found that Alfred W. Harms and Anita F. Harms, the original owners of the property, platted the property intending to create a general plan of development restricting the use of the property to single-family residential purposes, and in order to effectuate this intent they placed in most of the deeds transferring lots in their subdivision a restriction which was enforceable by plaintiffs.The trial court held defendants violated the restrictive covenant in their deed by converting their residence into a multi-unit dwelling and by actually renting apartments to nonfamily members.In regard to defendants' counterclaim, the trial court found that the LaValles' swimming pool was constructed and located with the acquiescence and consent of the defendants.Therefore, the trial court permanently enjoined defendants from renting or leasing the two units in their basement and dismissed defendants' counterclaim.We affirm.

1.We consider, first, the issue raised by plaintiffs' application for injunction against defendants.Alfred W. Harms and Anita F. Harms owned property in Carver County, located on Lake Waconia, which they platted into subdivisions known as Harms Lake View Terrace and Harms Lake View Terrace First Division(hereafter referred to as Lake View Terrace).A restrictive covenant in the original and subsequent deeds to many of the lots in Lake View Terrace made them "subject to the condition that nothing but a single private dwelling or residence, designed for the occupancy of one family and an appurtenant garage shall be erected upon said land * * *."

In 1959, the Harms transferred to defendantFaye Kulkay lots in Lake View Terrace by warranty deed containing the above-quoted covenant.Plaintiffs are other property owners living in Lake View Terrace at locations generally nearby defendants' property.The deeds through which plaintiffs became property owners contained substantially the same covenant as that quoted above.

Defendants constructed a single-family residence in the spring of 1970.At that time, they were aware of the restrictive covenant.Defendants' construction plans were presented to the Harms, and defendants assured the Harms that their building was not going to be a duplex.On July 31, 1973, Mr. Kulkay was placed on disability retirement from the United States Treasury Department.The resulting financial impact induced defendants to remodel their basement into two rental units.These units were rented subsequently to persons unrelated to defendants.During remodeling, objections were registered by several of the plaintiffs to use of the property for rental purposes.

Mrs. Harms testified she and her husband had a general plan in mind when they developed Lake View Terrace; the plan was to restrict the development to one-family dwellings.She further testified the restrictive covenant was put into many of the deeds in order to effectuate this purpose, and the restriction was designed to protect everyone with property in the development.

Fifteen original transfers were made between 1954 and 1961 by the Harms of 29 of the 84 lots in Lake View Terrace; the deeds involved contained no such restrictive covenant.Mrs. Harms testified that the restriction was not put into many of these early deeds because the first lots were sold to people from Waconia the Harms knew well, people who would build a single-family dwelling and not use such a dwelling for multi-family purposes.The restriction was put into deeds as people the Harms did not personally know wanted to buy lots, in order to protect everyone by preventing the construction of multi-family dwellings.Nevertheless, the Harms sold to five purchasers they did not know and yet whose deeds did not contain the restriction.

Resolution of the injunctive action depends on whether the trial court was correct in its finding that the Harms had a general plan in mind in developing the property and that the plan was to restrict the development to single-family dwellings.The trial court's finding will not be set aside unless it is clearly erroneous.Theros v. Phillips,256 N.W.2d 852(Minn.1977).²

The existence of a general plan of development is a question of fact to be determined by looking to the intention of the original owners in platting the development, the conditions of the platting, the sale of the lots, and all surrounding circumstances as indicated verbally or in writing.Rose v. Kenneseth Israel Congregation,228 Minn. 240, 252, 36 N.W.2d 791, 798(1949).The grantor's intention is the most important factor to consider in determining whether there exists a general plan.See, Rose v. Kenneseth Israel Congregation, supra.

Evidence of the grantor's intention in developing the area as supplied by the grantor herself demonstrates that the trial court's finding is not clearly erroneous.The testimony of Mrs. Harms is the most persuasive evidence available of whether the original grantors intended that Lake View Terrace be...