Yogman v. Parrott

• Decision Date: 21 August 1996
• Parties: Peter H. YOGMAN and Diane E. Walker, husband and wife, Raymond C. Miller and Myrtle L. Miller, husband and wife, and Robert W. Knapp and Ruth E. Knapp, husband and wife, Respondents, v. Gregory A. PARROTT and Myra L. Parrott, husband and wife, Appellants. 94-4377; CA A89262.
• Court: Oregon Court of Appeals

Page 1352

921 P.2d 1352

142 Or.App. 544

Peter H. YOGMAN and Diane E. Walker, husband and wife,

Raymond C. Miller and Myrtle L. Miller, husband

and wife, and Robert W. Knapp and Ruth

E. Knapp, husband and wife, Respondents, v. Gregory A. PARROTT and Myra L. Parrott, husband and wife, Appellants.

94-4377; CA A89262.

Court of Appeals of Oregon.

Argued and Submitted May 1, 1996.

Decided Aug. 21, 1996.

Stephen F. Crew, Portland, argued the cause for appellants. With him on the briefs were Gary Firestore and O'Donnell, Ramis, Crew, Corrigan & Bachrach.

Judith N. Selich, Newport, argued the cause and filed the briefs for respondents.

Before RIGGS, P.J., and DEITS and LANDAU, JJ.

RIGGS, Presiding Judge.

Plaintiffs brought this action to enforce a restrictive covenant and to enjoin defendants from renting their vacation home. Defendants appeal from a summary judgment for plaintiffs. Because there is no dispute as to the facts, we review to determine whether summary judgment is appropriate as a matter of law. ORCP 47 C. We reverse and remand.

Plaintiffs and defendants own houses in Miracle View Annex, a beachfront subdivision in Lincoln County. All of the lots in the subdivision are subject to a set of restrictive covenants that were recorded in 1963. When defendants are not occupying their vacation home, they rent it on a short-term basis to groups of up to 10 people. Reservations and payments are made through a third party. ¹ Plaintiffs filed a complaint seeking a declaration that defendants' rental activity violates a restrictive covenant that provides:

"All lots within said tract shall be used exclusively for residential purposes and no commercial enterprise shall be constructed or permitted on any of said property."

The parties filed cross-motions for summary judgment. The court granted plaintiffs' motion, denied defendants' motion and entered a judgment awarding declaratory and injunctive relief to plaintiffs. The court determined that defendants were in breach of the covenant because they were not renting their home on a casual basis but "engaging in the commercial activity of a rental business." Defendants appeal, assigning error to the court's rulings on the summary judgment motions.

The issue in this case is whether the short-term rental of a home within the subdivision constitutes a nonresidential purpose or a commercial enterprise, either of which is a violation of the covenant. Resolution of the parties' dispute turns on the interpretation of the language of the covenants, which reflects the intent of the drafters. ORS 42.240; Palmer v. Johnston, 110 Or.App. 538, 541, 823 P.2d 1024, rev. den. 313 Or. 74, 828 P.2d 457 (1992) (citing Alloway v. Moyer, 275 Or. 397, 550 P.2d 1379 (1976)). Plaintiffs assert that "[t]he acceptance of a fee in exchange for daily or weekly stays at [the home] is not a residential purpose" under the covenant. We disagree. Whether or not defendants receive a rental fee is not the determinative factor, because the "residential purpose" clause of the restrictive covenant controls the manner in which the property is used. Although the renters pay to occupy defendants' home, they are using the home for residential purposes. Plaintiffs do not assert, nor does the evidence indicate, that defendants' home, when rented, is used for any nonresidential purposes.

Bruni v. Thacker, 120 Or.App. 560, 853 P.2d 307, rev. den. 317 Or. 485, 858 P.2d 875 (1993), does not support plaintiffs' argument. In Bruni, we held that the defendants' bed and breakfast establishment violated a restrictive covenant that limited the use of certain property to "single family residential purposes." On its facts, Bruni appears to be analogous to this case because it involved parties who were providing short-term accommodations for a fee. However, the restrictive covenant that we interpreted in Bruni was fundamentally different in one important respect--it limited use of the property to single family residential purposes. We did not need to decide whether operation of a bed and breakfast was a nonresidential use of the property, because the defendants violated a more specific provision of the covenant, the single-family limitation, when they provided accommodations to non-family members. Unlike in Bruni, the restrictive covenant in this case simply limits use of the property to "residential purposes." It does not contain any further qualifications, such as requiring owner occupancy or single-family occupancy; therefore, as long as the property is being used solely for residential purposes, it does not matter who is using it or whether the occupants have paid a fee to do so. See Johnson v. Campbell, 259 Or. 444, 447-48, 487 P.2d 69 (1971) (covenant allowing "residential use only" does not prohibit...