Stephenson v. Perlitz

Citation524 S.W.2d 786
Decision Date29 May 1975
Docket NumberNo. 7706,7706
PartiesWilliamson STEPHENSON et al., Appellants, v. Werner J. PERLITZ et ux., Appellees.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Scott R. Kidd, Austin, for appellants.

Thomas H. Watkins, Austin, for appellees.

KEITH, Justice.

The question is, Does a restrictive covenant in a deed providing that '(a)ll improvements to be erected upon the premises hereby conveyed shall be built and used for residence purposes . . . (and) (o)nly one residence shall be erected upon the premises hereby conveyed' prohibit the erection of a duplex or two-unit dwelling thereon? We answer the question in the negative for the reasons now to be stated.

All parties own lots in Block 3 of Edgemont Addition in the City of Austin, there being many costly and well-kept single family homes therein including those of the plaintiffs. The Newman plaintiffs had resided upon their lot since 1960, the Stephenson plaintiffs on their lot since 1970. The Perlitz defendants purchased their lot in 1973 with knowledge of the restrictive covenants mentioned above. The lots of the parties are either adjacent or very close to each other.

Plaintiffs instituted this suit when they learned that the defendants had begun the construction of a duplex upon their lot, only the foundation having been started at the time of the filing of suit. A temporary restraining order prohibiting further construction was continued in effect as a temporary injunction; but, upon the hearing on the application for the permanent injunction, tried to the court, the temporary injunction was dissolved and the permanent injunction was denied. Although the trial court filed findings of fact and conclusions of law (and refused to make additional findings or conclusions), the controlling facts are not in dispute.

Plaintiffs' main contention, upon which all of their subsidiary points are based, is that the deed restrictions set out earlier apply to and prohibit the construction of the duplex by defendants since it would constitute more than one residence upon the lot. We disagree and affirm the judgment of the trial court.

Our decision is controlled by MacDonald v. Painter, 441 S.W.2d 179 (Tex.1969), and cases therein cited. We extract several rules, so clearly stated therein, as applicable to the case at bar.

1. Having examined all of the restrictions 'in context and apply(ing) to them the settled rules of construction, we conclude that the covenants in question are free of uncertainty and ambiguity .' (441 S.W.2d at 182)

2. The restrictions found in the deeds in this case ('used for residence purposes' and '(o)nly one residence shall be erected upon the premises'), in the language of Justice Pope in MacDonald, supra, 'do not prohibit the construction of the duplexes.' (Id.)

3. 'The terms 'residence purposes,' and 'residences' require the use of property for living purposes as distinguished from uses for business or commercial purposes.' (citations omitted)

4. 'According to most authorities, the terms, without other limiting words, do not prohibit duplex living units.' We find no such limiting words in our deeds.

With these guidelines established, we turn now to the series of out-of-state cases cited by Justice Pope in support of our last quotation from that opinion. The first case cited, Bear v. Bernstein, 251 Ala. 230, 36 So.2d 483, 14 A.L.R.2d 1372 (1948), forms the basis of a lengthy annotation in 14 A.L.R.2d 1376 entitled 'Covenants--Multiple Residence.'

The Bear Court framed the question in this language:

'The question is, does a restrictive covenant in a deed providing that the land shall be 'used only for residential purposes * * * and that only one residence shall be erected on * * * (the) lot' prohibit the erection of a duplex or four-unit apartment house.' (36 So.2d 483)

After considering many authorities, the Court concluded that the restrictions quoted in the question did not prohibit the construction of a duplex or apartment house upon the property.

The second case cited in MacDonald was Weber v. Graner, 137 Cal.App.2d 771, 291 P.2d 173 (1955), where the restrictive covenant provided 'that the premises are 'to be occupied for residence purposes only, and nowise for business purposes;" and 'Plaintiffs proposed improvement consists of a two-story building comprising 48 apartments or separate residential units in which families will live .' (291 P.2d at 176)

The Weber Court concluded that the apartment house would not violate the restrictive covenant, saying:

'Thus these premises are 'to be occupied for residence purposes,' and this is so whether the structure is occupied by one family or a number of families. The word 'residence' has reference to the use or mode of occupancy to which the premises may be put. If it had been intended that the improvements to be placed on this property were to be for the use of one family only, words indicating such an intention undoubtedly would have been used, as is frequently done, such as 'a single residence,' 'a private residence,' 'a private home,' 'a private dwelling,' 'a single family dwelling,' or 'a single dwelling house." (Id.)

Later comments by the Weber Court indicate that court placed emphasis upon the singular 'a' in each of the illustrations given in the foregoing quotation. (Id. at 177)

In the third case cited by Justice Pope, Baker v. Smith, 242 Iowa 606, 47 N.W.2d 810 (1951), the Court was considering 'a high-class residential addition' and the covenants were quoted as restricting the use of the lots "for residence purposes exclusively and for no other purpose whatever." (Id. at 811) The Supreme Court of Iowa held that the trial court was in error when it construed the quoted language to mean "for single family residence purposes exclusively." (Id. at 812) Many cases were cited in support of the holding that the quoted restriction did not prohibit the construction of an apartment building upon one of the lots.

Finally, Justice Pope cited Sporn v. Overholt, 175 Kan. 197, 262 P .2d 828 (1953). In Sporn the lots were 'designated as Residence lots' and 'no Dwelling shall be erected thereon which shall cost less than Three Thousand Dollars; said Dwelling to consist of four or more rooms.' (262 P.2d at 829--830, emphasis in text) The Sporn Court concluded:

'It appears to be the general rule that any kind of a building devoted exclusively to residence purposes, Whether a duplex or an apartment house may be erected under a covenant limiting the use of the property to residence purposes. * * * Generally, the restrictions using the unqualified terms 'residence' or 'dwelling' have been held merely to limit the type of use to be made of the property and not to forbid the erection of a residence for occupancy by several families such as a duplex or double house which, under the weight of authority, has been held permissible, as the terms 'residence' and 'dwelling' have the effect merely to limit the property to living quarters, as distinguished from business or commercial uses.' (Id. at 831, emphasis supplied)

The dissent, citing Green v. Gerner,...

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4 cases
  • Witty v. American General Capital Distributors, Inc., 01-84-0667-CV
    • United States
    • Court of Appeals of Texas
    • 3 Julio 1985
    ...Inc., 413 S.W.2d 825, 827 (Tex.Civ.App.--San Antonio), rev'd on other grounds, 419 S.W.2d 820 (Tex.1967); Stephenson v. Perlitz, 524 S.W.2d 786, 788-89 (Tex.Civ.App.--Beaumont 1975), rev'd on other grounds, 532 S.W.2d 954 (Tex.1976); Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.......
  • Stephenson v. Perlitz
    • United States
    • Supreme Court of Texas
    • 4 Febrero 1976
    ...a trial on the merits the trial court denied the permanent injunction. The court of civil appeals affirmed with one justice dissenting. 524 S.W.2d 786. We Petitioners, Mr. & Mrs. William Stephenson and Mr. & Mrs. Sanford Newman, are home owners in the Edgemont subdivision in the City of Aus......
  • Southwick v. State
    • United States
    • Court of Appeals of Texas
    • 21 Noviembre 1985
    ...that case, we consider its judicial pronouncement of the law to be controlling on the question here. See Stephenson v. Perlitz, 524 S.W.2d 786, 788-89 (Tex.Civ.App.--Beaumont 1975), rev'd on other grounds, 532 S.W.2d 954 (Tex.1976); Thomas v. Meyer, 168 S.W.2d 681, 685 (Tex.Civ.App.--San An......
  • Stephenson v. Perlitz
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 22 Abril 1976

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