Sain v. Silvestre

• Decision Date: 09 March 1978
• Citation: 144 Cal.Rptr. 478,78 Cal.App.3d 461
• Parties: Jack A. SAIN and Friedl Sain, Plaintiffs and Respondents, v. Severin SILVESTRE and Lola Silvestre, Defendants and Appellants. Civ. 51565.
• Court: California Court of Appeals Court of Appeals

Page 478

144 Cal.Rptr. 478

78 Cal.App.3d 461

Jack A. SAIN and Friedl Sain, Plaintiffs and Respondents, v. Severin SILVESTRE and Lola Silvestre, Defendants and Appellants.

Civ. 51565.

Court of Appeal, Second District, Division 3, California.

March 9, 1978.

As Modified March 21, 1978.

Cooper, Epstein & Hurewitz and Alan D. Gross, Beverly Hills, for defendants and appellants.

Friedman & Cone, Henry Friedman and Donald L. A. Kerson, Los Angeles, for plaintiffs and respondents.

FAINER, ^* Associate Justice.

Defendants, the Silvestres, appeal from a judgment ordering them to remove certain structures on their residential property (herein sometimes called "lot 18") within 30 days after entry of judgment or pay to plaintiffs, the Sains, the sum of $15,000. The judgment also awarded plaintiffs $4,200 in attorneys' fees and court costs in the sum of $243. The judgment was entered on August 6, 1976; defendants filed a motion for a new trial on November 22, 1976, alleging both newly discovered evidence which could not have been discovered and produced at trial and excessive damages. The motion for new trial was denied. ¹

Defendants make numerous contentions on appeal, including the following:

1. The tract developer did not satisfy the requirements necessary to impose mutual equitable servitudes on the residential properties owned by plaintiffs and defendants.

2. The foreclosure, by private sale, of the deed of trust on the tract in which the residential properties are located, securing a $300,000 indebtedness borrowed by the tract developer, eliminated the mutual equitable servitudes if they were, in fact, enforceable at the time.

In addition to those contentions, both parties contend that if they are successful on this appeal they should be awarded attorneys' fees and costs as

the prevailing party. THE EQUITABLE SERVITUDES SATISFY THE REQUIREMENTS OF THE CALIFORNIA LAW GOVERNING THEIR CREATION

In the landmark case of Werner v. Graham (1919), 181 Cal. 174, 183 P. 945, the California Supreme Court gave approval to the concept of mutual equitable servitudes as a method of imposing reasonable land use controls and private restrictions on the property of a grantee provided that certain requirements are met. Equitable servitudes have been used frequently in the subdivision of large tracts of land in modern urban areas to promote sound community development by establishing uniform restrictions on the use and occupancy of all lots to be sold in the subdivision. ²

". . . According to Werner, a general plan of real estate development can give rise to mutual equitable servitudes only when both the grantor and grantee intend that the land conveyed is to be restricted pursuant to a general plan, that intent appears in the deed, the parties' agreement shows that the parcel conveyed is subject to restrictions in accordance with the plan for the benefit of all the other parcels in the subdivision and such other parcels are subject to like restriction for its benefit, and the dominant and servient tenements are adequately shown. (Citations.) 'In such a case the mutual servitudes spring into existence as between the first parcel conveyed and the balance of the parcels at the time of the first conveyance. As each conveyance follows, the burden and the benefit of the mutual restrictions imposed by preceding conveyances as between the particular parcel conveyed and those previously conveyed pass as an incident of the ownership of the parcel, and similar restrictions are created by the conveyance as between the lot conveyed and the lots still retained by the original owner.' " (Terry v. James (1977) 72 Cal.App.3d 438, 442-443, 140 Cal.Rptr. 201, 203; emphasis in original.)

Ordinarily, a general plan of restriction is recorded by the subdivider grantor for the purpose of insuring the uniform and orderly development and use of the entire tract by all of the original purchasers as well as their successors in interest. The restrictions are imposed upon each parcel within the tract. These subdivision restrictions are used to limit the type of buildings that can be constructed upon the property or the type of activity permitted on the property, prohibiting such things as commercial use or development within the tract, ³ limiting the height of buildings, imposing setback restrictions, protecting views, ⁴ or imposing similar restrictions. ⁵

In 1963 the entire tract in which the residential properties in question are located was owned by land developers Anderson and Kelly, who are hereinafter referred to as either "Anderson" or "the common grantor." On October 14, 1964, Anderson recorded a "Declaration of Restrictions (Tract 27436)" to "establish a general plan for the improvement and development" of the tract. The declaration included the following language as paragraph IV: "No hedge or hedgerow, or wall or fence or other structure shall be planted, erected, located or maintained upon any lot in such location or in such height as to unreasonably obstruct the view toward Coldwater Canyon from any other lot or lots on said tract." The "Declaration of Restrictions" as recorded by Anderson expressed the intent to impose a general plan of restrictions on the tract and expressly declared that the restrictions were for the benefit of the lots in the tract. (Martin v. Ray (1946) 76 Cal.App.2d 471, 474, 173 P.2d 573.) There was a designation or description of the dominant tenement in the declaration sufficient to satisfy the requirements of case law. (Wing v. Forest Lawn Cemetery Assn. (1940) 15 Cal.2d 472, 480, 101 P.2d 1099.)

The practice of recording a declaration is favored by tract owners because it reduces the filing fee for each deed and assures that the restrictions in the deeds will be uniform. (See, 2 Bowman, Ogden's Revised California Real Property Law, supra, § 23.22, p. 1153.) While the recorded declaration of restrictions should be incorporated by reference in each deed, this is not a fatal omission provided that the recorded restrictions are incorporated by reference in the first deed and provided that the subsequent grantees of the remaining lots in the tract take title to their lots with notice, actual or constructive, of the recorded declaration of restrictions. ". . . The requirement of notice is satisfied by the reference in each of the deeds to the restrictions, the common plan, and the description of the benefited property. (Fn. omitted.) If the equitable servitudes were created properly, a legal description of the property subject to the restrictions will appear in the 'chain of title' in the County Recorder's Office for the county in which the property is located. (Fn. citations omitted.) Such recording constitutes constructive notice of the restrictions sufficient to satisfy the notice requirement. (Fn. citations: Gamble v. Fierman (1927) 82 Cal.App. 180 (255 P. 269) . . .; Wayt v. Patee (1928) 205 Cal. 46 (269 P. 660) . . .)" (4 Miller and Starr, Current Law of California Real Estate (1977 Rev.) § 25:8, p. 177; emphasis added.) ⁶

Under the general tract plan of restrictions, the mutual servitudes "spring into existence" at the time of the first conveyance by the tract owner. The grantee in the first deed acquires the right to enforce the restrictions against the grantor's remaining lots and the purchasers to whom the grantor later conveys the remaining lots. The subsequent grantees with notice take titles to their lots subject to the restrictions. (Riley v. Bear Creek Planning Committee, supra, 17 Cal.3d 500, 505-506, 131 Cal.Rptr. 381, 551 P.2d 1213; Werner v. Graham, supra, 181 Cal. 174, 183-184, 183 P. 945.)

On November 12, 1965, Anderson, the common grantor, conveyed lot 17 of the tract to plaintiffs' predecessors in interest. This conveyance was by a grant deed recorded December 14, 1965, and stated that it was subject to "Conditions, restrictions, reservations, covenants, easements, rights and rights of way of record, if any." At the time of this conveyance, which was the first conveyance in the tract, mutual building and land use restrictions sprang into existence so that plaintiffs' predecessors in interest, the grantees in the first deed, acquired the right to enforce the restrictions against the grantor's remaining lots and the purchasers to whom the grantor later conveyed those lots. In 1967 the original grantees of lot 17 conveyed their interest in the lot to plaintiffs herein. ⁷

The common grantor also conveyed two other lots, numbers 9 and 10, in 1966. Those conveyances were by grant deed and were expressly made subject to the conditions, covenants and restrictions of record.

In August 1963, Anderson borrowed $300,000 from San Fernando Valley Federal Savings and Loan Association (herein "Valley Federal"), which debt was secured by a deed of trust on the entire tract, recorded August 27, 1963. The recording of this deed of trust was prior in time to the recording of the "Declaration of Restrictions" establishing the general plan of equitable servitudes. After the "Declaration of Restrictions" was recorded but before the conveyance of lot 17, Anderson, on November 14, 1964, borrowed an additional $50,000 from Valley Federal. On May 13, 1965, Anderson borrowed an additional $35,000. There is a dispute as to whether the subsequent borrowings were actually secured by the 1963 deed of trust and, if they were so secured, whether the security for these borrowings or further advances was junior to or senior to the recorded "Declaration of Restrictions."

After conveying lots 17, 9 and 10, Anderson defaulted on the loans to Valley Federal. On October 28, 1966, Valley Federal filed notice of default and election to sell under the deed of trust. The notice of default and election to sell indicated that Anderson was in default on the $300,000 indebtedness plus "one additional note dated November 4, 1964, for $50,000" and "one additional note dated May 13, 1965, for $35,000." A foreclosure by private...