Daily Development for
Thursday, May 26, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

There are two cases here involving "residential only" issues. The first one is the real zinger, but the second one is tagged on because I had it.

SERVITUDES; RESTRICTIVE COVENANTS; USE RESTRICTIONS; "RESIDENTIAL ONLY:" Statement on plat of large tracts stating that "this plat is approved as a residential subdivision and no tract is to have more than one single family residential unit" clearly and unambiguously limits every parcel to residential use only.

Hollis v. Garwall, Inc., 945 P.2d 717 (Wash App. 1997).

That language on the plat, again, was: "This plat is approved as a residential subdivision and no tract is to have more than one single family residential unit." Lot owners sought to bar a mining company from opening an open gravel mine on a lot it owned within the subdivision.

Most of the parcels in the subdivision were larger than twenty acres. Four of the parcels were less than twenty acres. The mining company first attempted to argue that the purpose of the plat was to impose the restrictions only on the four smaller parcels, since the plat was labeled "short plat" and normally such a term is used in Washington to identify resubdivisions of four parcels or less. The court was not convinced that the misnaming of the plat indicated that the grantors intended to apply the restrictions only to the four lots.

The mine owners also argued, apparently not convincingly enough, that the language on the map was inherently ambiguous, and really didn't specifically prohibit non-residential uses on the property. The Court of Appeals affirmed the judgment below that their mining operation should be enjoined.

After release of the opinion, in an argument for reconsideration, the mine owners attempted to introduce evidence that the quoted language in fact appeared in a high percentage of subdivision plats in the county as a consequence of public requirements relating to septic capacity. The "approval as a residential subdivision" actually identified that the county authorities had determined that the property could be used for residential purposes and the "one dwelling unit" restriction had to do with the septic capacity restrictions. The court, in an amended opinion following rehearing, refused to consider this new evidence.

A dissenter argued that the court really paid no attention to the fundamental ambiguity in the language and should have permitted introduction extrinsic evidence. In fact, the dissenter noted that the language recorded on the plat is not evidence that there was any agreement that a servitude was to be imposed on the land at all.

Comment 1: Doesn't the dissent have a point? This language really is quite vague, and far from the definitive language that most courts usually require to impose permanent land restrictions through recorded notice. Even though the court didn't have the evidence of the local practice of identifying septic approvals, wasn't there still sufficient doubt that the court should have refused to find a servitude here?

Comment 2: Interestingly, both the majority and the dissent, even though they clearly are aware that the action is brought in equity for injunctive relief, cite requirements that for this covenant to run there must be privity of estate. One suspects that this language probably came from the briefs and was introduced into the opinion by law clerks, but who's educating these law clerks, anyway? There is no requirement of privity of estate for covenants to be enforced in equity in most every other state, and likely this is true in Washington as well. Such loose language probably causes our friend Bill Stoebuck, noted SERVITUDES commentator, DIRTer and University of Washington property law prof, to do back flips!!

SERVITUDES; RESTRICTIVE COVENANTS; USE RESTRICTIONS; "RESIDENTIAL ONLY:" Use of property as bed and breakfast is permitted under a "residential only" restriction, as such use is incidental to residential use.

Persson-Mokvist v. Anderson, 942 P.2d 1154 (Alaska 1997).

The Alaska Supreme Court held that the use of property a bed and breakfast did not violate a plat note restricting property use in a subdivision to residential/recreational use. The property owner used three cabins on two lots as bed and breakfast rentals, renting them approximately 30-60 days per year.

As a side note, the case also involved extensive activities involving the raising and training of sled dogs. The "bed and breakfast keepers" also kept a dozen or so of their own sled dogs on their property which their daughter trained for her use in the junior iditarod. The property owners did not raise the dogs to sell. Other defendant property owners kept 40 dogs on their lot to train for sled dog competitions. Another subdivision lot owner sued, claiming that the dog raising and training activities and the bed and breakfast businesses were commercial activities in violation of the Plat note. However, based upon the evidence, the court affirmed a lower court finding that the dog raising and training activities were "recreational" and the bed and breakfast usage was deemed incidental to residential use.

Comment: For similar holdings, see 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); 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).

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