Riley v. Stoves

• Court: Arizona Court of Appeals
• Writing for the Court: HATHAWAY
• Citation: Riley v. Stoves, 526 P.2d 747, 22 Ariz.App. 223 (Ariz. App. 1974)
• Decision Date: 23 September 1974
• Docket Number: CA-CIV,No. 2,2
• Parties: , 68 A.L.R.3d 1229 James W. RILEY and Lois Riley, his wife, Appellants, v. George STOVES and Isabel H. Stoves, his wife, Joe H. Baker and Velois R. Baker, his wife, Harold R. Constable and Maxine T. Constable, his wife, Eldon S. Johnson and Beryl Johnson, his wife, Appellees. 1573.

Page 747

526 P.2d 747

22 Ariz.App. 223, 68 A.L.R.3d 1229

James W. RILEY and Lois Riley, his wife, Appellants, v. George STOVES and Isabel H. Stoves, his wife, Joe H. Baker and Velois R. Baker, his wife, Harold R. Constable and Maxine T. Constable, his wife, Eldon S. Johnson and Beryl Johnson, his wife, Appellees.

No. 2 CA-CIV 1573.

Court of Appeals of Arizona, Division 2.

Sept. 23, 1974.

Skousen, McLaws & Skousen, P.C., by Richard E. Skousen, Mesa, for appellants.

Wade, Robson, Palmer & Bethea, Ltd., by Duane Wm. Schultz, Mesa, for appellees.

OPINION

HATHAWAY, Chief Judge.

Defendants James W. and Lois Riley appeal from a judgment against them which enjoined their further violation of a restrictive covenant and from an award of attorneys' fees to plaintiffs.

Plaintiffs and defendants are all owners of lots comprising Enchanted Acres Subdivision, Unit One, a mobile home subdivision consisting of 39 lots. At the time the defendants purchased their lot, it was subject to a recorded Declaration of Restrictions which included the following:

'AGE LIMITS

3. Restricted to persons 21 years of age and older. One family unit per lot. Developers are not restricted in regard to age until subdivision is completed.'

It was admitted at trial that defendants lived on their lot with two children under 21 years of age. On appeal, they assert that the above-quoted restriction is invalid upon several grounds.

Defendants first contend that the restriction is too vague to be enforceable. They argue that it is susceptible of two meanings, i.e., it can be construed as prohibiting any one under 21 years of age from living in the subdivision or it can be construed as forbidding only the sale of a lot to one under 21 years of age.

When a court is faced with an ambiguous or vague restrictive covenant, the person seeking to enforce the restriction has the burden of proving that it applies to the particular facts. He must meet this burden with evidence showing that, despite the ambiguous language of the restriction, both the intent of the parties and the purpose of the restriction are clear. In the absence of such a showing, the ambiguity will be resolved in favor of the free use and enjoyment of the property and against the restriction. Palermo v. Allen, 91 Ariz. 57, 369 P.2d 906 (1962); R 3 R Realty Co. v. Weinstein, 4 Ariz.App. 517, 422 P.2d 148 (1966).

It is established that:

'. . . the cardinal principle . . . is the intention of the parties as it may appear or be implied from the instrument itself. (Footnote omitted) If such instrument is ambiguous or its meaning is not clear, the circumstances and pertinent facts surrounding its execution and known to the parties are to be considered in determining their intention. (Footnote omitted) Thus, the precise terminology employed in a covenant will not bind the court in its construction of the parties' intent if other facts exist which are more expressive or decisive of this point.' 20 Am.Jur.2d, Covenants, § 5, p. 579.

Restrictions which are not absolutely clear are to be interpreted in the ordinary and popular sense, related to circumstances under which they were used, having in mind their purpose and general situation. King v. Kugler, 197 Cal.App.2d 651, 17 Cal.Rptr. 504 (1961); Harrison v. Frye, 148 Cal.App.2d 626, 307 P.2d 76 (1957).

In King v. Kugler, supra, appeal was taken from a judgment which enjoined the defendants from erecting a structure of a height exceeding that of a single-story dwelling which was already located on the land in question. Appellant argued that the restrictive phrase 'one story in height' was vague. The court maintained that the words were being used in a common and popular sense and were to be viewed 'in the light of the entire instrument . . . and the general plan and appearance of existing structures established in the tract.' 17 Cal.Rptr. at 507. The court thus found no ambiguity in the term.

The appellant in Harrison v. Frye, supra, contended that the term 'first-class residence building' was ambiguous. The court indicated however, that the terms used were to be interpreted in their ordinary sense, using Roget's Thesaurus as authority for synonyms. It stated:

"In the absence of technical words or phrases whose meanings are obscure, the office of interpretation belongs to the court. If the contract explains the meaning of the words, there is no need to go outside the contract. If however, because of the use of technical or trade terms, the language is not plain, the testimony of those skilled in the art or experts in the field is admissible as to the meaning of the language. Where the words are not used in any special or local sense, their meaning is not a matter to be established by expert testimony, and they are to be given their ordinary meaning.' (12 Car.Jur.2d 356--357.)'

In the case at hand, the phrase 'restricted to persons 21 years of age and older' is to be construed in its popular sense and in relation to the circumstances of its use. The trial court properly received evidence of such circumstances. Plaintiff introduced a promotional brochure prepared by the common grantor who recorded the restrictions which states that the subdivision is 'restricted to adult living.' Each plaintiff who testified stated he had understood before purchasing his lot that the restriction in question effectively precluded children from living in the subdivision. Plaintiffs relied upon the age-limit restriction in purchasing their lots.

The testimony of plaintiff Harold R. Constable is typical in this regard:

'In the first place we searched for quite some time to find an adult area that suited us; was quiet especially for my wife in her condition. Two specialists in California advised her due to her condition to move into a quiet area. She has a nervous condition and an arthritic condition. So the best place we figured out to move for her benefit would be to move to Arizona. And we searched in many places around here and due to these restrictions and being away and quiet this was our number one choice for residing here.'

From the language of the restriction and the circumstances of its use, it appears self-evident that what was being sought was the prohibition against persons under 21 years of age residing in the subdivision. We believe the evidence presented compelled the trial court's interpretation of the restriction as a mutual agreement by each lot owner that persons under the age of 21 years would not be allowed to live in the subdivision.

Of no consequence is appellants' contention that the restriction violates A R.S. § 33--303 and is therefore unenforceable. Section 33--303 ¹ provides as follows:

'A person who refuses to rent to any other person a place to be used for a dwelling for the reason that the other person has a child or children, or who advertises in connection with the rental a restriction against children, either by the display of a sign, placard, written or printed notice, or by publication thereof in a newspaper of general circulation, shall be punished for the first offense by a fine of not less than one hundred nor more than five hundred dollars, and for a subsequent conviction by a fine of five hundred dollars, by imprisonment for three months in the county jail, or both.'

Section 33--303 clearly applies only in a rental situation. While a situation could arise wherein an owner of a lot could decide to rent his lot and persons with children might desire to rent it from him, that situation is not before us and we give no opinion as to the effect § 33--303 would have upon the restriction. The situation before us involves one who purchases a lot promising generally not to allow children to live thereon and who moves onto the lot with children. There is no contention that this aspect of performance under the restriction is illegal. We will not void an agreement in the form of a restrictive covenant merely because a performance which could possibly be rendered thereunder might at some future date violate state law.

Defendants also argue that A.R.S. § 33--303 sets out a broad public policy of non-discrimination against children in housing and that enforcement of the age limit restriction would violate this public policy. As noted above, § 33--303 applies only to rental housing. If the legislature had intended to prohibit discrimination as to owner-occupied housing, it could have easily extended its mandate beyond the landlord-tenant situation. The section is clearly a measure designed to prevent landlords, in periods of housing shortages, from totally excluding families from housing facilities.

Defendants next contend that the trial court's enforcement of the restrictive covenant violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The United States Supreme Court has long held that the enforcement of a racial restrictive covenant by a state court could constitute state action denying equal protection of the laws to members of the excluded race. Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); Shelly v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). In Shelley, the court reasoned as follows:

'We have noted that previous decisions of this Court have established the proposition that judicial action is not immunized from the operation of the Fourteenth Amendment simply because it is taken pursuant to the state's common-law policy. (Fn. omitted) Nor is the Amendment ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement. State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms. And when the effect of that action is to deny rights subject to the protection of the Fourteenth Amendment, it is the obligation of this Court to enforce the constitutional commands.' 334 U.S....