Travis Heights Imp. Ass'n v. Small, 13862

• Citation: 662 S.W.2d 406
• Decision Date: 16 November 1983
• Docket Number: No. 13862,13862
• Parties: TRAVIS HEIGHTS IMPROVEMENT ASSOCIATION, et al., Appellants, v. J.A. SMALL, Appellee.
• Court: Court of Appeals of Texas

Page 406

662 S.W.2d 406

TRAVIS HEIGHTS IMPROVEMENT ASSOCIATION, et al., Appellants, v. J.A. SMALL, Appellee.

No. 13862.

Court of Appeals of Texas Austin.

Nov. 16, 1983.

Thomas L. Butler and Craig Smith, Austin, for appellants.

Michael G. Mullen, Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.

Before PHILLIPS, C.J., and EARL W. SMITH and GAMMAGE, JJ.

PHILLIPS, Chief Justice.

Travis Heights Improvement Association, and several Travis Heights Subdivision homeowners, appeal the judgment of the trial court, which, following a non-jury trial, denied appellants injunctive and declaratory relief as regards enforcement of a restrictive covenant.

We affirm.

The record reflects that in 1913 Travis Heights Subdivision was created; this subdivision is a part of the City of Austin. Among the restrictive covenants set-out in the recorded plat of the subdivision is the following:

4. All lots sold by the Company shall be subject to the following conditions and restrictions, binding upon the Company's grantee or any successor in title, which may be enforced by injunction or other legal process enforcing and compelling observance of these restrictions and conditions:

* * *

* * *

f. Said property shall be used only for residence purposes....

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* * *

In 1931 the subdivision was zoned in the "A" residence use classification and the "First" height and area district by the city. In 1958, Mr. and Mrs. O.O. Norwood, who at that time were the owners of the Travis Heights tract, which is the subject of the present action, requested and obtained a zoning change. The Norwood tract was rezoned "O" office use classification and "Second" height and area district. When the Norwoods made known their plans to build a motel on the tract, the appellant association sought an injunction to enforce the quoted restriction. In Norwood v. Davis, 345 S.W.2d 944 (Tex.Civ.App.1961, writ ref'd n.r.e.) we held that the restriction was binding on the Norwood tract. The zoning was not affected by that judgment. At the time that the present action commenced, the Norwood tract was still zoned "O."

In 1963, appellee Small purchased the Norwood tract with full knowledge of the restrictive covenants. In 1982, appellee filed with the city an application for a change of the zoning classification of the Norwood tract to "B" residence use classification and "Third" height and area district. This application was not acted upon. When appellee made known his plan to erect a ten-story condominium, containing 220 units, appellants filed suit against appellee and the City of Austin, and requested the following relief, as taken from their petition:

1) [that] the Court construe the restrictions for residence purposes contained in ... the plat ...

2) [that] the zoning ordinance currently allowing the zoning for the [Norwood tract] or for any part of it to be "O" office fifth height and area district be declared invalid and unenforceable and null and void;

3) [that] the zoning be rolled back to the original zoning of "A" residential use and first height and area district and the Court order any enlarging of such zoning to a lesser use be held null and void;

4) [that] Defendants and all subsequent owners of the [Norwood tract] and of all property in the Travis Heights Addition which is subject to the deed restrictions ... and their agents and assigns be enjoined from making any use of their property in the Travis Heights Addition other than that of single family residences or duplexes for residential purposes.

5) [that] Plaintiffs be awarded attorney's fees and costs of Court and such other and further relief to which Plaintiffs may be justly entitled, either at law or in equity.

In his answer, appellee prayed that plaintiffs take nothing by their suit, and by way of counterclaim requested "that the court declare the rights of the parties with respect to the ... restrictions in question to the effect that (1) the restrictions permit the construction of condominiums as contemplated by [appellee] and (2) the zoning change requested by [appellee] does not violate any such restrictions."

At trial, prior to resting, appellants nonsuited the City of Austin. The court found in favor of appellee, holding, among other things, that the restrictive covenant does not prohibit the building of multi-unit residential units on the Norwood tract. No "findings of fact and conclusions of law" appear in the record; we assume that none were requested.

In their first point of error, appellants contend that the trial court erred in not holding that the restrictive covenants prohibit the building of the multi-unit project proposed by appellee. The uncontradicted testimony indicated that each unit within the proposed condominium is to be used only as a residence: the individual units would be conveyed to people who wished to use them as dwellings; no commercial establishment would be operated inside the project; none of the units would be leased; once a certain percent of the units had been sold, the ownership of the common elements of the project would be conveyed to a homeowners association made up of individual unit owners. The issue which we must therefore resolve is whether the restrictive covenant in question, which limits the use of land to "residence purposes only," precludes the building of a multi-unit project, wherein each unit will be used for residential purposes, but wherein each unit will be occupied by a different owner. The answer must turn on the meaning of the phrase "residence purposes."

In construing a restrictive covenant, as with any other contractual provision, the primary rule is to ascertain the intention of the parties so that their purpose may be effectuated. Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.Comm.App.1928); Knopf v. Standard Fixtures Co., Inc., 581 S.W.2d 504 (Tex.Civ.App.1979, no writ); Curb v. Benson, 564 S.W.2d 432 (Tex.Civ.App.1978, writ ref'd n.r.e.). However, in construing a contractual provision, it is the objective, not the subjective intent of the parties which must be ascertained; it is the intent expressed or apparent in the writing which controls. Cherokee Water Co. v. Forderhouse, 641 S.W.2d 522 (Tex.1982); City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515 (Tex.1968). The terms of the contract must be the conclusive factor because such terms may have a meaning different from that which either party contemplated. City of Pinehurst v. Spooner Addition Water Co., supra. In determining the intent of the parties, the focus must be on the actual words of the restrictive covenant being construed. Couch v. Southern Methodist University, supra; Knopf v. Standard Fixtures Co., Inc., supra; Curb v. Benson, supra; cf. MacDonald v. Painter, 441 S.W.2d 179 (Tex.1969).

In construing a restrictive covenant, the language used by the parties will be given its plain grammatical, ordinary and commonly-accepted meaning, unless it appears that to do so will defeat the intention of the parties as clearly evidenced by other provisions of the instrument. Stephenson v. Perlitz, 532 S.W.2d 954 (Tex.1976); Moore v. Smith, 443 S.W.2d 552 (Tex.1969). Such covenants must be considered and enforced as written, and cannot be enlarged by construction. Gilbert v. Shenandoah Valley Improvement Association, 592 S.W.2d 28 (Tex.Civ.App.1979, no writ). Such restrictive clauses must be construed strictly; if there is any ambiguity in the terms of the restrictions, or substantial doubt of the meaning of such terms, the ambiguity and doubt must be resolved in favor of the free use of the land. Davis v. Huey, 620 S.W.2d 561 (Tex.1981). Although they are not favored, such covenants will be enforced if the language employed is clear. Id.

In MacDonald v. Painter, supra, the Supreme Court held that restrictive covenants which provided that "all improvements ... shall be built and used for residence purposes only ...," and that "[a]ll improvements to be erected on said premises shall be built for residence purposes, or for use in connection with residences ...," did not bar the erection of duplexes on the restricted property. The Court quoted Annot., 14 A.L.R.2d 1376 (1950) for the proposition that

[r]estrictions which, without more, merely limit the use of the property to "residence" purposes have generally been held not to have the effect of forbidding the erection or maintenance of multiple dwellings, the courts taking the view that such terms were directed only at the type of use to be made of the property, and not at the number of families which might make such use.

The Court held that use of the phrase "residence purposes" connotes only that the property must be used for living purposes as distinguished from business or commercial purposes. The Court distinguished other cases wherein the phrase "residence purposes" was accompanied by other language which indicated an intent to limit the number of residences.

These principles were reiterated in Stephenson v. Perlitz, supra, wherein the Supreme Court held that the following restrictive covenant precluded the erection of a duplex:

All improvements to be erected upon the premises hereby conveyed shall be built and used for residence purposes, excepting such improvements as may be proper for use in connection with residences.

Only one residence shall be erected upon the premises hereby conveyed and if two stories or more, shall be of the original cost of not less than $6,000.00 and if less than two stories shall be of the original cost of not less than $2,500.00.

The Stephenson court noted that in this instance, the term "residence purposes" was accompanied by other limiting words. It was held that the term "one residence" was not ambiguous, and that the ordinary and commonly-accepted meaning of the phrase does not encompass an apartment building or a duplex.

In oral argument, appellants conceded that the restrictive covenants which we must here construe would not...