Daily Development for Wednesday, January 23, 2003

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

SERVITUDES; RESTRICTIVE COVENANTS; USE RESTRICTIONS; "RESIDENTIAL USE ONLY:" 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.

Namleb Corp. v. Garrett, 2002 WL 31882843, (Md. App. 12/30/02)

The restrictions in question stated: (1) . . . No lot shall be used except for residential purposes . . . No residence other than one detached single family dwelling shall be erected on any one lot in said subdivision."

Namleb owned a lot within the subdivision on which there stood a single family residence. It acquired an additional t parcel outside the subdivision but adjacent to its lot within the subdivision. That lot was not "landlocked," apparently, when Namleb acquired it, but subsequently became so. Namleb proposed to create a new subdivision with on the additional parcel with access by what the court describes as "pipestems"

(apparently driveways) across the lot in the original subdivision.

Namleb argued that the new subdivision also would consist of single family homes and would be restricted even more severely than the existing subdivision. Therefore, the residents in the old subdivision would have no basis for complaint thatthe restrictions in their subdivision were being violated, either in letter or spirit.

The court disagreed, citing an earlier Maryland high court decision, Eisenstadt v. Barron, 250 A. 2d 851 (Md. 1969) which had held that a driveway could not be built across a subdivision lot to provide access to an apartment building to be built on an adjacent lot outside the subdivision where subdivision the lot was restricted as follows: "1-The lots shown on this plat shall be used for residential purposes only, and no structure shall be erected . . . thereon except a single dwelling."

Namleb maintained that Eisenstadt was distinguishable because the use of the adjacent parcel, and therefore the driveway, was inconsistent with the "single family" restriction of the parcel where the drive was to be located. This was not true of Namleb's proposal. But the court read the precedent case, from Maryland's highest court, to be a categorical holding that driveways on a single family parcel can be used to access only the permitted residential use on the parcel in question. The Eisenstadt court had emphasized that the restriction stated that there could be only "a single dwelling" erected on each lot. Similarly, in the instant case, the restriction provided that each lot could contain no more than "one detached single family dwelling." As the driveway related to another dwelling, this went beyond the "residential" character delineated by the restriction.

The court cited a number of cases, apparently taken from an ALR annotation, that basically split on the interpretation of this issue under similar facts around the country. It commented that, were it "writing on a clean slate" it might have concurred with those cases that had permitted driveways that served other residential properties. But it stated that it was bound by the existing Maryland precedent.

Comment 1: On first blush, the editor concluded that he agreed with the outcome of this case, but in fact further study of the situation has led the editor to agree with the court that, given a "blank slate," he might also have found for the appellant. The editor agrees, however, that the authority of Eisenstadt indeed appears difficult to overcome.

The restriction has two parts: (1) There can be no "buildings" on the lot except for a one single family detached home; (2) the lot can be used only for "residential purposes." If we assume that the driveways themselves are not "buildings," then they do not violate the first restriction. In order to conclude that the driveways violate the second, the court is forced to conclude that the two restrictions ought to be read together, even though they are not linked grammatically. A court not inclined to extend the reach of restrictive covenants could easily have read the two provisions independently, and permitted the driveways.

Unfortunately, this same argument could have been made in Eisenstadt, since the restriction there did not say "single family residential use only" but simply "residential use." Consequently, Eisenstadt did not turn on the fact that the proposed construction was multi family, but rather on the fact that, in its view, the two restrictions were linked.

Comment 2: The surrounding circumstances of the case tended to shade the arguments a little more toward the application of the covenant. The street serving the old subdivision lot was a cul de sac. Homeowners frequently invest in such locations because they provide more quiet and less traffic. Namleb's proposal would have added nine new residences to the properties served by the cul de sac. Although we aren't told how many properties already adjoined this cul de sac, nine new residences obviously would increase the traffic flow.

This fact, however, only provides a "shading" as indicated, since the court is interpreting the overall subdivision restriction, and not only applicable only to this particular street and lot.

Comment 3: To illustrate the problem with the court's conclusion, consider the hypothetical posed by Roger Winston, a Maryland residential development lawyer and DIRTer who provided the editor with the case. What if the proposed use of the restricted lot was for underground utility lines that would serve the adjacent properties? The court, under the analysis of Eisenstadt, would still have found a violation.

Another example might be the situation that would arise if one owner within the subdivision sought to obtain an easement across a neighboring subdivsion lot for access to the first owner's residence. Since the easement would not serve the home on the burdened property, by the court's analysis, it would be prohibited. Is this really the probable intent?

Perhaps the answer to these questions is that the court might find a violation, as indicated, but could still deny an injunction, leaving the neighbors to try to show damages from the objected-to use.

Comment 4: DIRT, interestingly, has had a similar issue arise in recent DD's concerning restrictive uses in commercial property. In the DD for 1/17/02, the editor discussed two recent Florida cases holding that a restriction prohibiting the use of the property for "drugstore" purposes precluded the construction of a parking lot serving a drugstore on adjacent premises. But compare: Baim v. Ashburn Corporation, A-2882-98T2 (N.J. Super. App. Div. 2000), Unpublished; February 3, 2000: (A restrictive covenant that bars use of a parcel for a particular competitive use does not bar use of that parcel for access to an unrestricted parcel that is engaged in that use. )

The editor also criticized the Florida cases for not requiring more specificity of those drafting the restrictions. One of the problems with broad interpretations of intent in land use restrictions is that such interpretations do not serve to impose any discipline on drafters, leading to more vagueness and less certainty for future developers. Ultimately, such problems will lead to even more draconian judicial approaches in the long run when the courts find the covenants, as thus broadly interpreted, are unworkable in light of new developments in the area, possibly making the covenants ultimately less enforceable.