Shaver v. Hunter

• Decision Date: 03 December 1981
• Docket Number: No. 9320,9320
• Citation: 626 S.W.2d 574
• Parties: Leland Lester SHAVER, Appellant, v. Bob L. HUNTER, et al., Appellees.
• Court: Texas Court of Appeals

Page 574

626 S.W.2d 574

Leland Lester SHAVER, Appellant, v. Bob L. HUNTER, et al., Appellees.

No. 9320.

Court of Appeals of Texas, Amarillo.

Dec. 3, 1981.

Rehearing Denied Dec. 28, 1981.

Renea Hicks, Austin, for appellant.

Carr, Evans, Fouts & Hunt, Donald M. Hunt, Lubbock, for appellees.

Before REYNOLDS, C. J., and DODSON and COUNTISS, JJ.

DODSON, Justice.

As plaintiffs, Bob L. Hunter, John Zakrasek, Osco Abney, D. D. Tibbets and Myron Hart brought this action seeking, among other things, to enjoin Leland Lester Shaver, the defendant, from violating the "single family residency" use requirements of a restrictive covenant imposed on Virginia Place Addition, a Lubbock subdivision. The plaintiffs are homeowners in the subdivision. The defendant owns a corner lot and approximately one half of another adjacent lot in the subdivision. A single family residence is situated on the corner lot.

The defendant leases all of his property to the Lubbock Area Extended Rehabilitation Services, a non-profit corporation. In conjunction with the Texas Rehabilitation Commission, the corporation uses the property to provide sheltered living arrangements for severely handicapped persons. At the time of trial, the residence was occupied by a health care provider employed and paid by the commission and three handicapped clients of the corporation. The occupants are unrelated single young women. The three clients pay rent to the corporation, which in turn pays the rent to the defendant.

The covenant which plaintiffs sought to enjoin defendant from violating primarily restricted all lots in Virginia Place to use for residential purposes only, specifying that a residence shall be construed to be a single family dwelling. Concluding that the use of the property did not comply with the single family residency requirements, the trial court enjoined the defendant from violating the restrictive covenant. The defendant appeals from the judgment and we affirm.

The defendant presents three points of error. With his first point, the defendant maintains that the use of the property in question complied with the restrictive covenant because "the house is a single family dwelling being used for residential purposes and the covenant does not reach beyond this prohibition." In effect, the defendant contends that the restrictive covenant limits only the construction of dwellings and not their use and occupancy.

We acknowledge that when the covenant restricts the form or character of the structure rather than limiting the use of the property to a single family residence, some courts refuse to enjoin group home living arrangements where the group functions as a single household unit. See J. T. Hobby & Son, Inc. v. Family Homes Etc., 274 S.E.2d 174 (N.C.1981), (a married couple as resident managers and four mentally handicapped adults); Malcolm v. Shamie, 290 N.W.2d 101 (Mich.App.1980), (foster parent and five mentally handicapped women, with the court limiting its decision to "the same or very similar factual situations"); Bellarmine Hills Ass'n v. Residential Systems Co., 84 Mich.App. 554, 269 N.W.2d 673 (1978), (a foster parent and fewer than six mentally handicapped children, where the children temporarily resided on the property in order to attend special classes).

Our analysis of similar cases further reveals that when the restrictive covenant limits the use of a piece of property to one single family residence rather than merely prescribing the form or character of the structure that can be built on that property the courts enjoin the group home living arrangement, commercial activity, and any living arrangement other than that of a single family residence. See Jayno Heights Landowners Ass'n v. Preston, 85 Mich.App. 443, 271 N.W.2d 268 (1978), (group home for elderly women); Cash v. Catholic Diocese of Kansas City-St. Joseph, 414 S.W.2d 346 (Mo.App.1967), (Mother Superior and eight to ten nuns); Seaton v. Clifford, 100 Cal.Rptr. 779, 24 Cal.App.3d 46 (1972), (homeowner and six or fewer mentally handicapped persons); Davis v. Hinton, 374 S.W.2d 723, 726 (Tex.Civ.App.-Tyler 1964, writ ref'd n. r. e.), (premises occupied by business tenants and a lodger).

In support of his position, and relying on MacDonald v. Painter, 441 S.W.2d 179, 183 (Tex.1969), and Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516, 518 (1958), the defendant asserts that "restrictions are construed strictly in favor of the grantee and against the grantor and in favor of the free and unrestricted use of the property." In Southampton, the rule is properly stated "that in construing covenants restricting the use of land all doubt should, as a general rule, be resolved in favor of the freer use of property and against restrictions." (Emphasis added). Id. However, the general principle stated in Southampton should not be applied in such a way as to defeat the clear intent and the plain and unambiguous purpose expressed in the restriction. See Stephenson v. Perlitz, 532 S.W.2d 954, 956 (Tex.1976); and Knopf v. Standard Fixtures Co., Inc., 581 S.W.2d 504 (Tex.Civ.App.-Dallas 1979, no writ).

The covenant in question provides that all lots shall be used for residential purposes only and states that a "residence shall be construed to be a single family dwelling." The clear intent and the plain and unambiguous purpose expressed in the covenant is to restrict the use of the property to a single family residence. In Davis v. Hinton, 374 S.W.2d 723 (Tex.Civ.App.-Tyler 1964, writ ref'd n. r. e.), the court construed a restrictive covenant identical in effect to the covenant before us. In Davis, the appellant made the same challenge that the defendant asserts here. In disposing of the appellant's challenge, the court determined that the covenant limited the use of the property to a single family residence rather than merely prescribing the form or character of the structures that could be built on the property.

The court's determination in Davis was predicated on the general rule that as employed in building restrictions the words "dwelling house" are, in the absence of anything to the contrary, construed in their ordinary sense as a house occupied as a residence rather than as a store, office or other building; and that the term defines the use of the property rather than merely the form or character of the structure. Id. at 726. In the present case we conclude that the clear intent and the plain and unambiguous purpose expressed in the restrictive covenant in question is to limit the use of the property to a single family residence rather than merely to prescribe the form or character of the structure. The defendant's first point is overruled.

In his second point of error, the defendant maintains that the trial court erroneously failed to conclude that the people occupying the property constitute a single family and, therefore, their use of the property is permissible under the restrictive covenant. In essence, he contends that the four unrelated single women constitute a single housekeeping unit and that the housekeeping unit constitutes a single family within the covenant's meaning. We disagree.

When construing restrictive covenants which limit the use of property to "single family residence," the courts generally construe the term to mean a "nuclear family" or an "extended family." The "nuclear family" consists of only "parents, children, and domestic servants." See Rudy v. Southampton Civic Club, 271 S.W.2d 431, 435 (Tex.Civ.App.-Waco 1954, writ ref'd n. r. e.). Generally, the "extended family" consists of a nucleus group of persons related by blood, marriage or adoption which may include parents, children and collateral kinsmen such as grandparents, grandchildren, uncles, aunts, nieces and the like. This family group is often extended to include the family's domestic servants and incidental boarders and lodgers. Annot., 71 A.L.R.3d 693, 699 (1976). Cf. Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d at 518.

The defendant primarily relies on the City of White Plains v. Ferraioli, 357 N.Y.S.2d 449, 34 N.Y.2d 300, 313 N.E.2d 756 (1974), to support his position that the young women's living arrangement constitutes a single family residence within the meaning of the restrictive covenant. In Ferraioli, the court construed a city zoning ordinance. The Ferraioli house was located in an R-2 zone of the city where the principal permitted uses were "a 'Single family dwelling for one housekeeping unit only,' fire houses, police stations, public schools and churches." In the zoning ordinance, "family" was defined as "one or more persons limited to the spouse, parents, grandparents, grandchildren, sons, daughters, brothers or sisters of the owner or the tenant or of the owner's spouse or tenant's spouse living together as a single housekeeping unit with kitchen facilities." We observe that this definition basically follows the "extended family" view.

The Ferraiolis leased their house to Abbott House, Inc., a private agency licensed by the state of New York to care for neglected and abandoned children. The occupants of the house consisted of an adult couple, their two children and ten foster children. The adult couple was paid a salary to care for the foster children and all of the household expenses were paid by Abbott House with funds received from the city of New York. The court stated that the living arrangement was permanent and "akin to a traditional family which also may be sundered by death, divorce, or emancipation of the young. Neither the foster parents nor the children are to be shifted about; the intention is that they remain and develop ties in the community. The purpose is to emulate the traditional family and not to introduce a different 'life style'." (Emphasis added). The court distinguished this living arrangement from a temporary one such as a group of college students sharing a house and commuting to a nearby school, or a "so-called ...