Daily Development for Thursday, February 24, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

SERVITUDES; EQUITABLE SERVITUDES; “COMMON PLAN” REQUIREMENT: Virginia court adheres to rule that equitable servitudes will not be found absent a common plan giving rise to reciprocal duties.

Barner v. Chappell, 585 S.E.2d 590 (Va. 2003)

John Garland Pollard, who would one day be Governor of Virginia, subdivided certain property in Williamsburg for residential purposes between 1924 and 1938.  A portion of the property (the “undesignated parcel”), between lot 9 and Texas Avenue, was not given either a number or a letter designation.  Governor Pollard lived on Lot 7.  There was a wooded ravine in the center of the subdivision.  Governor Pollard intended that this remain a natural area.  Provisions in the deeds to those parcels limited development on the respective lots to single-family residences, and impose other construction restrictions such as twenty-foot setback lines and specified building sites.  The court does not indicate that the deeds to the other parcels sold in the subdivision were restricted, although it does say that the subdivision was for residential purposes, so they have have been restricted to residential useage.

Craighill was the record owner of Lot A which is adjacent to Lot 8.  Governor Pollard conveyed to Craighill Lot 8, a parcel containing less than one-tenth of an acre, under a deed providing that "the property hereby conveyed is to be used in connection with [Lot A] and no house, garage or structure of any kind shall be erected thereon."  The deed further provided that the restriction shall run with the land "forever."   The Pollard/Craighill deed was  the only deed relating to the conveyance of lots in Pollard Park that restricted all construction.

At the time that Lot 8 was conveyed to Craighill, Governor Pollard had  conveyed all the lots designated on the 1930 plat by either numbers or letters with the exception of Lot 7, his residence.  Governor Pollard, however, retained ownership of the undesignated parcel.  Later, he conveyed a portion of this parcel to Morecock.  The deed conveying this property contained the same restrictions concerning use of the property as the deeds conveying the other Pollard Park lots prior to the conveyance of Lot 8.  Through a series of subsequent conveyances, Eugene and Maurene Tracy (the Tracys) ultimately acquired this property.  Following Governor Pollard's death, the remainder of the previously undivided parcel was subdivided into two lots which were conveyed, in 1938, by executors of Governor Pollard's estate to the Juliens) and the Fulmers.

The executors conveyed Lot 7 (Pollard’s residence) to the predecessor-in-title of the Barretts.

In 1998, the Barners became the owners of Lot 8.  Because they failed to conduct a title examination, the Barners did not have actual notice of the Lot 8 building restriction originating from the Pollard/Craighill deed.  Soon after acquiring Lot 8, the Barners made preparations to construct a single-family residence upon this lot.

The various owners of lots in the subdivision, including all those mentioned above, sued to enforce the Lot 8 covenant.  The lawsuit  alleged that the construction of a residence on Lot 8 would violate the covenant and sought an injunction.   It subsequently developed that the majority of these parties, who traced their ownership of lots in Pollard Park to deeds that predated the Pollard/Craighill deed, were relying upon the theory that the restrictive covenant represented an equitable servitude intended to benefit all of the lots in Pollard Park.

During an ore tenus hearing, the parties presented conflicting evidence on the purpose of the covenant.  The Barners' expert witness testified that, in 1932, the City of Williamsburg had a serious sewage disposal problem and that Governor Pollard supported a drainage plan which would run a new sewer line through Lot 8.  The Barners contended that the building restriction on Lot 8 was intended solely to prevent any structures from obstructing the proposed sewer line.  "Because the Barners were willing to reroute the existing sewer line around the footprint of their proposed residence, they asserted that the covenant was no longer needed for its intended purposes, and, thus, had lapsed."

The Barners' opponents presented evidence that the facilitation of the proposed sewer plan was never Governor Pollard's primary purpose in creating the building restriction on Lot 8.  Rather, they contended that Governor Pollard's intention "as demonstrated by the building restrictions in all of the deeds conveying lots in Pollard Park, was to preserve the natural, green character of the subdivision."

The chancellor ruled that "based on the evidence and a view of Pollard Park . . . Governor Pollard intended to preserve Lot 8 as an open, green space and that the purpose of the covenant, therefore, had not lapsed."   The chancellor further found that there was sufficient vertical privity between at least one of the neighboring landowners and Governor Pollard and that the restrictive covenant in the Pollard/Craighill deed met all other requirements for a covenant running with the land. Accordingly, the chancellor determined that the covenant could be enforced against the Barners.  The chancellor also expressly found, in the alternative, that the restriction was enforceable by all the neighboring landowners as an equitable servitude.  Based upon these findings, the chancellor permanently enjoined the Barners, and their successors in interest, from building a house, garage, or any other structure of any kind on Lot 8.  From that decision, the Barners appealed.

The first consideration was whether the chancellor correctly determined that the restrictive covenant in the Pollard/Craighill deed, originally conveying Lot 8 in Pollard Park, was enforceable by at least one of the neighboring landowners.  The court said that "A restrictive covenant is enforceable if a landowner established: (1) horizontal privity; (2) vertical privity; (3) intent for the restriction to run with the land; (4) that the restriction touches and concerns the land; and (5) that the covenant is in writing.  Waynesboro Village, L.L.C. v. BMC Properties, 255 Va. 75, 81, 496 S.E.2d 64, 68 (1998)."

Vertical privity, explained the court, exists when there is privity between the original parties and their successors in interest.  More precisely, vertical privity requires that the benefit of a restrictive covenant extend only to one who succeeds to some interest of the beneficiary in the land respecting the use of which the promise was made.  In the present case, the neighboring landowners who traced their ownership of property in Pollard Park through chains of title to the conveyances of Governor Pollard that predate the Pollard/Craighill deed, had not established the necessity of vertical privity.  "This is so because the interests of their predecessors pre-date the creation of the covenant in the Pollard/Craighill deed, and, thus, they did not succeed to some interest of the beneficiary of the covenant."  These landowners, said the court, are Edward A. Chappel, Susan Geary, William Geary, Elizabeth Rutgers, Marcia Smith, Victor Smith, and Joseph Wheeler.

By contrast, however, the Tracys, the Juliens, and the Fulmers traced their ownership of property in Pollard Park to original grantees in deeds executed after the execution of the Pollard/Craighill deed, and thus "meet the requirements for vertical privity because they can trace their interests directly to Governor Pollard, the beneficiary of the restrictive covenant contained in that deed."   Thus, the court found no merit in the Barners' contention that the Tracys, the Juliens, and the Fulmers do not have the necessary vertical privity.  The "mere fact that this parcel was not given a specific number or letter designation on this plat is of no significance and does not preclude the conclusion that Governor Pollard intended for this parcel also to benefit from the restriction imposed upon Lot 8."

Once a restrictive covenant has been established, stated the court, a party asserting that the restriction is unenforceable because changed conditions have defeated the purpose of the restriction has the burden of proving that the purpose of the restriction no longer exists.  Conditions must have changed so substantially that the essential purpose of the covenant is defeated.

The only evidence presented by the Barners regarding this issue was that Governor Pollard supported a plan to run a sewer line through Lot 8, the plan would not have worked without the sewer line in that approximate location and currently the sewer line can be relocated on Lot 8 so as not to prevent the construction of a single-family house.

By contrast, the neighboring landowners presented evidence to support the chancellor's determination that the purpose of the restrictive covenant was to maintain Lot 8 as an open, green area in Pollard Park.  This  purpose was consistent with the setback requirements and building restrictions in the various deeds and the provisions that the ravine area be maintained as a park.  The evidence that Lot 8 was a natural extension of the ravine prior to the construction of Hairpin Road was also consistent with the determination that the grantor's intent was to maintain Lot 8 as an open, green area.  Finally, said the court, "the chancellor's view of Pollard Park clearly established that the conditions in the neighborhood have not changed so substantially that the purpose of the restriction has been defeated.  Indeed, the evidence shows that Pollard Park remains substantially unchanged."  The court deferred to the judgment of the chancellor and held that those landowners in vertica!

 l priv
ity with Governor Pollard had the right to enforce.

Finally, the court addressed the issue of whether those landowners  who acquired their interest in lots in Pollard Park through chains of title to conveyances from Governor Pollard, that predated the Pollard/Craighill deed could enforce the restriction contained in that deed as an equitable servitude benefiting their properties.

The court stated that, by definition, "an equitable servitude can only arise when a common grantor imposes a common restriction upon land developed for sale in lots."    The burden "is on  the party claiming the benefit of the equitable servitude to show that a common restriction was intended."  Here, the prohibition against erecting a house, garage, or structure of any kind was not a common restriction on the lots in Pollard Park because only Lot 8 is restricted in that way.  Accordingly, the court held that the chancellor erred in determining that this restriction contained in the Pollard/Craighill deed was enforceable as an equitable servitude.

Comment 1: A lot of what the court says here is hornbook First Year Property stuff, but the notion that an equitable servitude must be part of a common scheme while a covenant running in a subdivision does not struck the editor as an interesting twist.  The court stubbornly concludes that the current owners of a lot not even designated as part of the subdivision, and sold more than ten years later by the developers executors were intended beneficiaries of a promise in the deed.  Had there indeed been a common scheme, the editor would have no quarrel; but, absent evidence that the developer viewed these lots as part of an overall development scheme, it strikes the editor as equally likely, perhaps more likely, that the Governor intended only to have his own residential lot - lot 7 - benefitted by the promise.  Since the proponents of the enforceability of the covenants had the burden of proof on the issue, the editor views the conclusions reached by the court as something of !

 a stra

Note that this is all really moot since apparently the successor owners of lot 7 also wanted the covenant enforced.  But perhaps the owners of the restricted lot would have had better luck obtaining releases if only that small group of owners was empowered to enforce.

Comment 2: Note also the Virginia court’s adherence to the privity rule even after the Restatement of Servitudes had declared the rule dead.

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