Lindner v. Woytowitz

Decision Date19 October 1977
Docket NumberNo. 135,135
Citation37 Md.App. 652,378 A.2d 212
PartiesDennis J. LINDNER et ux., v. Peter J. WOYTOWITZ et al.
CourtCourt of Special Appeals of Maryland

Peter V. Gargano, Baltimore, for appellants-cross/appellees.

Joseph L. Woytowitz, Baltimore, with whom was Peter J. Woytowitz, Baltimore on the brief, for appellees-cross/appellants.

Argued before MENCHINE, MASON and LISS, JJ.

LISS, Judge.

Dennis Lindner and his wife Jennifer are the appellants in this controversy arising out of their purchase of a one-acre lot located in the Tenth Assessment District of Baltimore County, at the intersection of Sweet Air and Manor Roads, being a part of the subdivision known as the Quinn Subdivision. The appellees, Peter J. Woytowitz and his wife, 1 purchased the entire 103-acre tract which is comprised in the subdivision in 1969. In August of 1969 they conveyed by deed the entire tract to Co-Far Holding Corporation, a straw corporation, and in that deed imposed certain restrictions, covenants and agreements on the land. In September 1969 the land was conveyed to Manor Development Corporation, the stock of which is fully owned by the appellees. Since the original restrictions were imposed, a total of 26 lots have been conveyed to purchasers, and in each instance the deeds of conveyance to the purchasers have referred to and incorporated the aforesaid restrictions, covenants and agreements.

The appellants purchased their lot in October of 1972 and pursuant to the requirements of the restrictions submitted for approval the plans and specifications for the erection of a one-family dwelling which were approved by the appellees. Appellants erected the proposed dwelling on the lot and were residing there at the time that the controversy between the parties began. The pertinent portions of the restrictions which are the subject matter of this case are stated as follows:

"No building, fence, wall, hedge, or other structure shall be commenced, erected, placed or altered in structure or color, on any lot, until the plans and specifications . . . have been approved in writing by the developer, his assigns or duly appointed agent. . . . In the event of a failure of the purchaser or purchasers of lots in QUINN to obtain the required prior written approval of plans, specifications and grading studies as established in this paragraph, said purchasers agree to reimburse the developer or his assigns for all costs and expenses to which he may have been put as a result of said failure, including but not limited to court costs and attorneys' fees." (emphasis supplied).

In the summer of 1976 appellants, concededly without prior approval, erected on their premises an above-ground type swimming pool of rigid construction, with a vinyl pool liner, placed on a mound of sand which was level with the ground. The top of the pool rose four feet above ground and had a diameter of eighteen feet. Accessories included a ladder for entering the pool and a water purifying apparatus outside the pool.

On July 24, 1976, a meeting was convened by Woytowitz at his home with four of the residents of the subdivision in attendance. A request for permission by another resident to erect a fence around an in-ground swimming pool was considered. One of the residents raised a question concerning the above-ground pool erected by the appellants without permission; and, after discussion, it was unanimously agreed that the pool was not suitable or desirable for the subdivision. It was determined at that meeting that two other above-ground pools had also been erected without prior permission, and the appellees notified all of the offending lot owners that the installation of the above-ground pools without the requisite permission was a violation of the restrictive covenant contained in their deeds. The offending property owners were advised that the violations were to be corrected by removal of the above-ground pools. Appellants refused to comply and appellees filed a bill of complaint in the Circuit Court for Baltimore County in which they prayed that the court require removal of the above-ground pools and that they be awarded legal costs and other expenditures necessitated by the violation.

Testimony taken at the Circuit Court (DeWaters, J. presiding) disclosed that a neighbor of the appellants living at 3 Marmaduke Court had erected a similar above-ground pool in 1973, without prior permission, and that another neighbor had done likewise in 1975. Neither of the neighbors had been notified of any objection to their actions until after the meeting at the appellees' home in July of 1976.

At the conclusion of the testimony and argument of counsel, the trial court concluded that the restrictive covenants were still in full force and effect; that the above-ground swimming pool was a structure within the meaning of the covenants; that no prior permission had been obtained for the erection of the structure, and that the equitable doctrine of laches did not bar the enforcement of the restrictions in that there had been no abandonment of the uniform scheme of development. Based on these conclusions, the trial court issued a decree granting the relief prayed by the appellees and directed that the above-ground pool be removed within 60 days. It is from this decree that this appeal is filed by the appellants.

In its ruling the trial court refused to allow the appellees any recovery for legal costs and other expenditures incurred by reason of the violation of the covenants. From this portion of the court's ruling the appellees have entered a cross appeal.

Appellants raise five issues to be considered by this Court. They are stated as follows:

1. Did the lower court err by holding that the appellees established the fact that a uniform scheme or plan of development was proven which prohibited above-ground swimming pools?

2. Did the lower court err in finding that the language of restrictive covenant number two precludes the erection of an above-ground swimming pool?

3. Did the lower court err in finding that the appellees were not prevented from enforcing the restrictive covenant number two on the theory of abandonment?

4. Was the lower court's ruling directing the appellants to remove the above-ground swimming pool too broad, based on the language in restrictive covenant number two?

5. Did the appellees fail to prove the allegations set forth in their bill of complaint with competent testimony?

(1)

The law of Maryland with respect to restrictive covenants was extensively discussed by Judge Hammond (later Chief Judge) of the Court of Appeals in Turner v. Brocato, 206 Md. 336, 345, 111 A.2d 855, 860 (1954). There, citing with approval from McKenrick v. Savings Bank of Baltimore, 174 Md. 118, 128, 197 A. 580, 584 (1938), it was said:

"These cases sufficiently establish as the law of this state these principles: That one owning a tract of land, in granting a part thereof, may validly impose upon the part granted restrictions upon the use thereof for the benefit of the part retained, and upon the part retained for the benefit of the part granted, or upon both for the benefit of both; that, 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, but that, if in such a case it appears that it was the intention of the grantors that the restrictions were part of a uniform general scheme or plan of development and use which should affect the land granted and the land retained alike, they may be enforced in equity . . . ."

The evidence in this case established without question that the restrictions imposed upon the land were intended by the grantors to be part of a uniform general scheme or plan of development. Each person purchasing in the subdivision was advised of the restrictions; each deed contained specific reference to the covenants and restrictions; and no house, fence or other structure, with the sole exception of the above-ground swimming pools, was erected without prior submission of the plans and specifications to the developer. The test for determining whether there is a common plan or scheme of development which permits the inference of intent that the restrictions were not for the personal benefit of the grantor but rather for the common advantage and benefit of all who purchased from him, has been stated as:

"where there has been proof of a general plan or scheme for the improvement of the property, and its consequent benefit, and the covenant has been entered into as part of a general plan to be exacted from all...

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10 cases
  • Markey v. Wolf
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1991
    ...noted its holding in Buckworth that disapprovals must be reasonable and exercised in good faith. Id. See Lindner v. Woytowitz, 37 Md.App. 652, 659-60, 378 A.2d 212 (1977), where we said when approval is reserved by a developer, the approving authority "would ... be required to approve or di......
  • Shader v. Hampton Improvement Ass'n, Inc.
    • United States
    • Court of Special Appeals of Maryland
    • June 26, 2014
    ...case a question of fact and must be established by evidence clear and unequivocal of acts of a decisive nature.” Lindner v. Woytowitz, 37 Md.App. 652, 658, 378 A.2d 212 (1977). As a threshold matter, we note that parties often conflate the standard for determining waiver by abandonment and ......
  • CR–RSC Tower I, LLC v. RSC Tower I, LLC
    • United States
    • Court of Special Appeals of Maryland
    • January 5, 2012
    ...owner against a neighboring property owner even if those two parties are not in privity with one another. See Lindner v. Woytowitz, 37 Md.App. 652, 378 A.2d 212 (1977) (allowing one neighbor to enforce a restrictive covenant against another neighbor where the neighbors shared a common grant......
  • Bowie v. Mie
    • United States
    • Court of Special Appeals of Maryland
    • May 4, 2007
    ...208 Md. at 313, 117 A.2d at 920-21; Schlicht v. Wengert; 178 Md. 629, 635, 636, 15 A.2d 911, 913, 914 (1940); Lindner v. Woytowitz, 37 Md.App. 652, 658-59, 378 A.2d 212, 216 (1977); Speer v. Turner, 33 Md.App. 716, 727-29, 366 A.2d 93, 100-01 (1976); Liu v. Dunnigan, 25 Md.App. 178, 190-92,......
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