Sissel v. Smith

• Decision Date: 22 November 1978
• Docket Number: No. 33961,33961
• Citation: Sissel v. Smith, 242 Ga. 595, 250 S.E.2d 463 (Ga. 1978)
• Parties: SISSEL et al. v. SMITH et al.
• Court: Georgia Supreme Court

Page 463

250 S.E.2d 463

242 Ga. 595

SISSEL et al. v.SMITH et al.

No. 33961.

Supreme Court of Georgia.

Argued Sept. 18, 1978.

Decided Nov. 22, 1978.

Tennant, Anderson & Davidson, T. Michael Tennant, Lawrenceville, for appellants.

Howard, Cook & Mullinax, Charles A. Mullinax, Stone Mountain, for appellees.

MARSHALL, Justice.

The plaintiffs-appellants brought suit against the defendants-appellees to enjoin defendantDanese B. Smith from converting the interior of her carport into a beauty shop.The parties are all residents of Unit I of Chimney Hills Subdivision, located in Gwinnett County.The plaintiffs argue that operation of a beauty shop in the defendants' carport violates the following restrictive covenants to which the parties' lots are subject: Restrictive Covenant 1."Lots shown shall be for single family residence purposes only."Restrictive Covenant 4."No building shall be erected on any lot to be used as a school, church, or kindergarten."The trial court disagreed with the plaintiffs and denied permanent injunctive relief.This appeal followed.

1.The evidence before the trial court showed that prior to institution of this suit the defendants had applied to the Gwinnett County Zoning Board of Appeals for a special exception to the residential zoning on their property to permit operation of a beauty shop in their home.Over the protests of the defendants' neighbors, the Zoning Board of Appeals granted the application on the condition that the beauty shop be operated only two days per week, that Danese Smith be the sole operator, and that Mrs. Smith see only one customer per hour.A representative of the zoning board testified that under these conditions the board did not consider operation of a beauty shop in the defendants' home to be a violation of the restrictive covenants to which their property is subject.

Danese Smith testified that she lives in a 1600-square-foot ranch home, with three bedrooms, two baths, a den, kitchen, dining room, and carport.She plans to enclose the carport and convert it into a beauty shop, but the exterior of the carport will match the existing exterior of the remainder of her home.Within the enclosed carport she will install several items of beauty-shop equipment, none of which will become fixtures except the plumbing equipment.Mrs. Smith is a licensed cosmotologist, and she will provide her customers with a wide range of hair-cutting and styling services.She will enlarge her driveway so that there will be adequate parking facilities for customers on the premises.Mrs. Smith testified that the enclosed carport could still be used as a den and would not interfere with the use of the remainder of the house as a residence.She further testified that no signs would be maintained in the yard.

The plaintiffs allege that the operation of a beauty shop on the defendants' premises will cause irreparable damage and injury to their property values, and traffic flow in the area will greatly increase.However, as the defendants point out, the plaintiffs have not presented any evidence in support of these allegations.

2." 'As a general rule, the owner of land in fee has the right to use the property for any lawful purpose, and any claim that there are restrictions upon such use must be clearly established.Limitations or restrictions by implication are not favored, and must be strictly construed.(Cits.)' "Jordan v. Orr, 209 Ga. 161, 163, 71 S.E.2d 206, 207(1952).Accord, Shoaf v. Bland, 208 Ga. 709(2), 69 S.E.2d 258(1952).

3.Strictly construing Restrictive Covenant 1, the trial court ruled that this covenant restricts only the type of buildings that can be constructed on the lots in the subdivision.The trial court ruled that if the owner of the subdivision had intended to restrict use of the lots further, as in preventing the incidental use of a portion of a residence as a beauty shop, he could have so provided in express language in Restrictive Covenant 4.

We agree with the trial court that, strictly construed, Restrictive Covenant 1 should be interpreted...