>This is our first contribution from ACMA participant Douglas Selph at Morris, Manning and Martin in Atlanta.  Like other regular reporters, Doug won’t always get credit, but our volunteer “case feeders” are the backbone of the DIRT DD service.  We are grateful for ACMA’s participation.  There is still a need for other reporters for many other states, including most of those in the Pacific region of the West Reporter series (other than New Mexico), and most states in the Northwest, Southern, and Southeast regions, and some in the Atlantic region, including Pennsylvania and all of New England.  We pick up a few cases from time to time from these areas, but need a regular quarterly reporter to be sure we get all the good ones.  Please contact me if foolish enough to volunteer.  Ed.

>
>Daily Development for Tuesday, August 6, 2008
>by: Patrick A. Randolph, Jr.
>Elmer F. Pierson Professor of Law
>UMKC School of Law
>Of Counsel: Husch Blackwell Sanders
>Kansas City, Missouri
>dirt@umkc.edu
>
>SERVITUDES; RESTRICTIVE COVENANTS; USE RESTRICTIONS; COMMERCIAL USE:  A restrictive covenant prohibiting commercial use of property is violated when commercial vehicles are parked in a residential driveway.  Roberts v. Lee, 658 S.E.2d 258 (Ga. Ct. App. 2008). 

>
>Homeowner resided in a subdivision subject to restrictive covenants, including a restriction that the property is to be used for residential purposes only.  Homeowner parked his business vehicles in the circular driveway and in front of his home.  The vehicles included a dump truck, a box van, and a pickup truck, among others.  He occasionally changed the oil there as well, and every morning between four and five AM would “crank” the truck for about twenty minutes before leaving for work. 

>
>Homeowner convinced the trial court that there was no violation of the  subdivision’s restrictive covenants, as they did not prohibit specifically the parking of commercial vehicles within the subdivision; that the covenants only prohibited commercial and business “activities” and were not specific enough to be enforced against the alleged violation. 

>
>The appeals court disagreed.  Construing the covenants to effect the intention of the parties, the court held that the homeowner violated the intent of the covenants to protect the residential character of the neighborhood when he used his residential property to advance his business purposes.

>
>The homeowner also argued that the plaintiff was not entitled to equitable relief because she lacked clean hands.  Plaintiff is a court reporter who typed transcripts on her home computer.  The court held that the plaintiff was not in violation of the covenants because her activity had no effect on the “value, status, stability, and residential character of her home or the subdivision.”

>
>Comment 1: The “no commercial use” restriction often is a most difficult one to construe.  The editor can’t argue with the notion that parking commercial vehicles such as dump trucks and box vans are a business activity.  But what about a pickup truck?  If so, what about when the resident drives a car provided by his or her employer, which otherwise looks like any other car?  Do designations on the outside of the car matter?  Then what about bumper stickers?  Are they more or less intrusive than neat lettering on the side of a pickup saying “Jones Cement Company.”

>
>In this case, the court dodged the question somewhat by noting that there were several pickup trucks parked on the circular driveway, none of them driven by residents of the home and all owned and operated by the company.  But it really doesn’t answer the question of how it would deal with a truck that was driven by the homeowner. 

>
>Here, note, the court refused to apply the rule literally to a resident who unquestionably was making a business use of her property.  This also is a very troublesome issue for courts.  Should courts be “philosopher kings” here, divining the probable intent of parties who for the most part bought into the subdivision without paying much attention to the covenant language at all?  Or should the force associations to use their amendment power or adjudicative function to provide more clear and predictable enforcement, and otherwise cut ruthlessly where the express language takes them?  These are two of many answers, but all answers have their problems, at least to the editor. 

>
>Comment 2: For a case taking an approach similar to this one, and prohibiting an activity that violates the spirit, if not the letter, of the restriction, see Tipton v. Bennett, 934 P.2d 203 (Mont. 1997) (3,200 square-foot storage building violates restrictive covenant limiting use of property to "residential purposes" as it is too big and intrusive to be regarded as an "ancillary use" to a residence even if used only to store personal property.)  Also see: Namleb Corp. v. Garrett, 814 A. 2d 585 (Md. App. 2002) (A roadway built across a residential restricted lot that provides access to other residential property outside the restricted subdivision is a violation of restrictions providing that there be only one single family dwelling erected on any one lot and that all lots be used only for "residential purposes." Driveways may serve only the residence on the given lot.).

>
>For application of the approach to affirm uses that are “commercial” but not intrusive, see Gabriel v. Cazier, 938 P.2d 1209 (Idaho 1997) DD 12/3/07) (A covenant prohibiting "business or trade" activity in a subdivision does not prohibit swimming lessons conducted by a homeowner's children for profit during the summer months.)  9394 LLC v. Farris, 782 N.Y.S.2d 281 (A.D. 2 Dept. 2004). (A restrictive covenant prohibiting "manufactory, trade or business of any kind" did not prohibit a property owner from engaging in certain business activities on his premises, such as maintaining his “corporate headquarters” there.)

>
>Also see the many cases permitting short term rentals and “bed and breakfast” uses in subdivisions requiring “residential only” activities and often prohibiting “commercial” or “business” uses:   Scott v. Walker, 645 S.E. 2d 278 (Va. 2007) (DD 6/27/07);  Persson-Mokvist v. Anderson, 942 P.2d 1154 (Alaska 1997) (use of property a bed and breakfast did not violate a plat note restricting property use in a subdivision to residential/recreational use) (DD 3/26//98); Catawba Orchard Beach Assn. v. Basinger, 685 N.E. 2d 584 (Ohio App. 6 Dist. 1996) (rental of three vacation cottages was a "private residential use.") (DD 2/16/98); Yogman v. Parrott, 937 P.2d 1019 (Or. 1997) (short term vacation rentals are a "residential purpose" and are not a "commercial enterprise") (DD 9/19/97).

>
>Items reported here and in the ABA publications
>are for general information purposes only and
>should not be relied upon in the course of
>representation or in the forming of decisions in
>legal matters.  The same is true of all
>commentary provided by contributors to the DIRT
>list.  Accuracy of data and opinions expressed
>are the sole responsibility of the DIRT editor
>and are in no sense the publication of the ABA.
>
>Parties posting messages to DIRT are posting to a
>source that is readily accessible by members of
>the general public, and should take that fact
>into account in evaluating confidentiality
>issues.
>
>ABOUT DIRT:
>DIRT is an internet discussion group for serious
>real estate professionals. Message volume varies,
>but commonly runs 5 to 15 messages per work day.
>
>Daily Developments are posted every work day.  To
>subscribe, send the message
>
>subscribe Dirt [your name]
>
>to
>
>listserv@listserv.umkc.edu
>
>To cancel your subscription, send the message
>signoff DIRT to the address:
>
>listserv@listserv.umkc.edu
>
>for information on other commands, send the message
>Help to the listserv address.
>
>DIRT has an alternate, more extensive coverage that includes not only
>commercial and general real estate matters but also focuses specifically upon
>residential real estate matters.  Because real estate brokers generally find
>this service more valuable, it is named “BrokerDIRT.”  But residential
>specialist attorneys, title insurers, lenders and others interested in the
>residential market will want to subscribe to this alternative list.  If you
>subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
>BrokerDIRT carries all DIRT traffic in addition to the residential discussions.
>
>To subscribe to BrokerDIRT, send the message
>
>subscribe BrokerDIRT [your name]
>
>to
>
>listserv@listserv.umkc.edu
>
>To cancel your subscription to BrokerDIRT, send the message
>signoff BrokerDIRT to the address:
>
>listserv@listserv.umkc.edu
>DIRT is a service of the American Bar Association
>Section on Real Property, Probate & Trust Law and
>the University of Missouri, Kansas City, School
>of Law.  Daily Developments are copyrighted by
>Patrick A. Randolph, Jr., Professor of Law, UMKC
>School of Law, but Professor Randolph grants
>permission for copying or distribution of Daily
>Developments for educational purposes, including
>professional continuing education, provided that
>no charge is imposed for such distribution and
>that appropriate credit is given to Professor
>Randolph, DIRT, and its sponsors.
>
>DIRT has a WebPage at:
>https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://cctr.umkc.edu/dept/dirt/