LuMac Dev. Corp. v. Buck Point Ltd. Partnership, OT-88-16

• Decision Date: 02 December 1988
• Docket Number: No. OT-88-16,OT-88-16
• Citation: 61 Ohio App.3d 558,573 N.E.2d 681
• Parties: LuMAC DEVELOPMENT CORPORATION, Appellant, v. BUCK POINT LIMITED PARTNERSHIP, f.k.a. Cedar Fair Limited Partnership, Appellee.
• Court: Ohio Court of Appeals

Page 558

61 Ohio App.3d 558

573 N.E.2d 681

LuMAC DEVELOPMENT CORPORATION, Appellant, v. BUCK POINT LIMITED PARTNERSHIP, f.k.a. Cedar Fair Limited Partnership, Appellee.

No. OT-88-16.

Court of Appeals of Ohio, Sixth District, Ottawa County.

Decided Dec. 2, 1988.

Syllabus by the Court

1. A restrictive covenant runs with the land if: (1) the original grantor and grantee intended that the covenant run with the land; (2) the covenant either "affects" or "touches and concerns" the land in question; and (3) privity of estate exists between the party claiming the benefit of the covenant and the party called upon to fulfill it.

2. The term "manufactured home," as defined in R.C. 4501.01(O), is inclusive of the formerly used term "house trailer."

Frank W. Reinheimer, Port Clinton, for appellant.

Dale A. Kline, Port Clinton, for appellee.

PER CURIAM.

This cause comes on appeal from the Ottawa County Court of Common Pleas, wherein that court granted summary judgment in favor of appellee, Buck Point Limited Partnership ("Buck Point"), substituted defendant in the action below.

In 1963, a portion of the real estate ("Parcel 1") owned by Robert and Elsie Quinn and William O. Hemminger was sold by deed to Gar Realty Company. The deed contained six restrictions or conditions limiting the use and enjoyment of the conveyed property. Grantors retained the other portion of the land ("Parcel 2") for their own use until 1966. Parcel 2 was then sold by deed and without restriction to Cedar Fair Limited Partnership, f.k.a. Cedar Point, Inc., predecessor in interest to Buck Point. Appellant, LuMac Development Corporation ("LuMac") subsequently purchased the restricted property from Gar Realty. LuMac filed an action for a declaratory judgment on October 6 1986, asking the trial court to declare the restrictive covenants "invalid and unenforceable" by Buck Point and to quiet title on their real property.

On February 24, 1988, the court below filed a journal entry granting summary judgment in favor of appellee. From that judgment, LuMac filed a timely notice of appeal and asserts as its assignments of error:

"I. The trial court committed error in finding that all of the restrictions continue effective.

"II. The trial court committed error in failing to define and determine if the restriction against 'trailers' and 'trailer courts' is presently effective against 'manufactured homes' and 'manufactured home parks.'

"III. The trial court committed error in failing to follow the present law that enforceability of the restriction against 'trailers' and 'trailer courts' is to be made based on the condition of the structure at the situs of its installation, not upon the condition of the structure at some prior time."

Summary judgment can be granted only if the evidence offered by the moving party shows that no genuine issue exists as to a material fact. Civ.R. 56(C). In determining whether summary judgment should be granted, inferences drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion for summary judgment. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 13 OBR 8, 467 N.E.2d 1378, paragraph one of the syllabus. When evidence could lead reasonable minds to reach but one conclusion, and that conclusion is adverse to the non-moving party, then and only then should summary judgment be granted. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. Accordingly, in reviewing the trial court's granting of a summary judgment to Buck Point, this court must ascertain whether any genuine question as to any material fact was raised by LuMac or if, as a matter law, Buck Point was entitled to a summary judgment.

Although couched in three assignments of error, LuMac essentially asks this court to determine two issues. The threshold question to be considered is whether the restrictive covenant precluding the placement of "trailers" or "trailer courts" on the property of LuMac was a covenant that runs with the land.

LuMac contends that the disputed restrictive covenant was personal and of benefit only to the grantors who have, since the establishment of the restriction, conveyed their property to Buck Point. The material clause in the deed imposing restrictions upon appellant's land reads as follows:

"As a part of the consideration supporting this conveyance, the Grantee, its successors and assigns covenant and agree to hold the herein described parcel subject to the following covenants, conditions, restrictions, limitations and reservations:

"a) No trailers or trailer courts shall be placed or established upon said premises or suffered to remain thereon.

"b) No road, way or bridge shall be built, established, or suffered to remain, from said premises westerly across the Kirk Ditch, so-called.

"c) No business for the retail sale of food, beer, wine, beverages, bait, ice, novelties or other like merchandise shall be established, or suffered to remain within an area of 500 feet to the north and 500 feet to the south of Grantors' existing carry-out store and extending 400 feet west of the centerline of Buck Road within said north and south limits, for a period of ten (10) years from the date of conveyance of said premises to Grantee.

"d) Grantors reserve, for themselves, their heirs and assigns, the right, easement and privilege to use for drainage purposes the existing ditch along the westerly boundary of said premises for the benefit of their premises adjoining premises sold herein upon the North, together with the right of entry upon said premises sold herein for the purpose of repairing said ditch and removing obstructions.

"e) Grantors reserve crops growing upon said premises together with the right to remove same.

"f) Said premises are subject to all legal highways."

The prerequisites for a covenant to run with the land are:

" ' * * * (1) The intent of the original grantor and grantee must have been that the covenant run with the land; (2) the covenant must either "affect" or "touch and concern" the land in question; (3) there must be privity of estate between the party claiming the benefit of the covenant and the party who is called upon to fulfill it. 21 Corpus Juris Secundum 923, Covenants, Section 54; 20 American Jurisprudence 2d 600, 601, Covenants, Section 30; 15 Ohio Jurisprudence 2d 19-22, Covenants, Sections 16-19.' " Peto v. Korach (1969), 17 Ohio App.2d 20, 23, 46 O.O.2d 29, 30, 244 N.E.2d 502, 505. See, also, Hughes v. Cincinnati (1964), 175 Ohio St. 381, 385, 25 O.O.2d 378, 381, 195 N.E.2d 552, 555. See, generally, 10 Ohio Jurisprudence 3d (1979) 239, Building, Zoning and Land Controls, Section 55, and the cases cited therein at fn. 33.

In applying this standard, we conclude that the restrictions written into the deed conveying Parcel 1 of grantors' property to Gar Realty were covenants that run with the land. ¹ The restriction precluding the establishment of a "trailer court" or placement of a "house trailer" on the property is a burden upon the conveyed property ("servient estate") in order to benefit the property from which it was taken ("dominant estate"). Hughes, supra, at 385, 25 O.O.2d at 381, 195 N.E.2d at 555. Therefore, the restriction both "touches and concerns" the land, increasing the value of the unrestricted property and decreasing the value of the restricted property by limiting its use. Id.

In addition, privity existed between the original covenantor and covenantee. The litigants in this action share the original covenantor as a common predecessor in title to their respective properties. Thus, LuMac, as the ultimate purchaser of the servient estate, is in privity with Buck Point, the current owner of the dominant estate. Peto, supra, 17 Ohio App.2d at 24, 46 O.O.2d at 31, 244 N.E.2d at 506. Hence, LuMac, upon purchase of the parcel subject to restrictions, obtained not only the rights incident to that ownership but also the obligations imposed by the covenants. Id. See, also, Berardi v. Ohio Turnpike Comm. (1965), 1 Ohio App.2d 365, 370, 30 O.O.2d 385, 389, 205 N.E.2d 23, 28.

Moreover, it is clear that the intent of the parties at the time of the creation of the restrictive covenants was that these restrictions run with the land. In ascertaining intent, restrictive covenants are to be read as a whole. Slife v. Kundtz Properties, Inc. (1974), 40 Ohio App.2d 179, 184, 69 O.O.2d 178, 181, 318 N.E.2d 557, 561. Nonetheless, LuMac urges this court to view each of the six conditions imposed by the grantors separately to determine intent. However, the intent of the parties is evidenced in the main paragraph, i.e., the first paragraph, which governs all six "covenants, conditions, restrictions, limitations and reservations." Said paragraph contains the phrase " * * * [t]he Grantee, its successors and assigns." Although the use of such terminology as "personal representatives," "assigns," "heirs," or "successors" is not essential to create a restrictive covenant which runs with the land, use of these words clearly reflects upon and is indicative of the intention of the creator to do so at the time of the conveyance. Siferd v. Stambor (1966), 5 Ohio App.2d 79, 86-87, 34 O.O.2d 189, 194, 214 N.E.2d 106, 111. See, also, Hughes, supra, 175 Ohio St. at 384-385, 25 O.O.2d at 380, 195 N.E.2d at 555; Stapleton v. Columbia Gas Transmission Corp. (1981), 2 Ohio App.3d 15, 19, 2 OBR 16, 20, 440 N.E.2d 575, 579; Peto, supra, 17 Ohio App.2d at 23, 46 O.O.2d at 30, 244 N.E.2d at 505. See, also, Hi-Lo Oil Co., Inc. v. McCollum (1987), 38 Ohio App.3d 12, 526 N.E.2d 90 (covenant enforced absent assignee language). We find that the use of the terms "assigns" and "successors" in the subject conveyance is applicable to the disputed restriction, as well as the remaining five conditions, and clearly reflects that the grantors intended that this provision run with the land.

LuMac asserts that in order to overcome public...