573 N.E.2d 681 | Ohio Ct. App. | 1988
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *560 This cause comes on appeal from the Ottawa County Court of Common Pleas, wherein that court granted summary judgment in favor of appellee, Buck Point Limited Partnership ("Buck Point"), substituted defendant in the action below.
In 1963, a portion of the real estate ("Parcel 1") owned by Robert and Elsie Quinn and William O. Hemminger was sold by deed to Gar Realty Company. The deed contained six restrictions or conditions limiting the use and enjoyment of the conveyed property. Grantors retained the other portion of the land ("Parcel 2") for their own use until 1966. Parcel 2 was then sold by deed and without restriction to Cedar Fair Limited Partnership, f.k.a. Cedar Point, Inc., predecessor in interest to Buck Point. Appellant, LuMac Development Corporation ("LuMac") subsequently purchased the restricted property from Gar Realty. LuMac filed an action for a declaratory judgment on October 6, *561 1986, asking the trial court to declare the restrictive covenants "invalid and unenforceable" by Buck Point and to quiet title on their real property.
On February 24, 1988, the court below filed a journal entry granting summary judgment in favor of appellee. From that judgment, LuMac filed a timely notice of appeal and asserts as its assignments of error:
"I. The trial court committed error in finding that all of the restrictions continue effective.
"II. The trial court committed error in failing to define and determine if the restriction against `trailers' and `trailer courts' is presently effective against `manufactured homes' and `manufactured home parks.'
"III. The trial court committed error in failing to follow the present law that enforceability of the restriction against `trailers' and `trailer courts' is to be made based on the condition of the structure at the situs of its installation, not upon the condition of the structure at some prior time."
Summary judgment can be granted only if the evidence offered by the moving party shows that no genuine issue exists as to a material fact. Civ.R. 56(C). In determining whether summary judgment should be granted, inferences drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion for summary judgment. Viock v.Stowe-Woodward Co. (1983),
Although couched in three assignments of error, LuMac essentially asks this court to determine two issues. The threshold question to be considered is whether the restrictive covenant precluding the placement of "trailers" or "trailer courts" on the property of LuMac was a covenant that runs with the land.
LuMac contends that the disputed restrictive covenant was personal and of benefit only to the grantors who have, since the establishment of the restriction, conveyed their property to Buck Point. The material clause in the deed imposing restrictions upon appellant's land reads as follows:
"As a part of the consideration supporting this conveyance, the Grantee, its successors and assigns covenant and agree to hold the herein described parcel *562 subject to the following covenants, conditions, restrictions, limitations and reservations:
"a) No trailers or trailer courts shall be placed or established upon said premises or suffered to remain thereon.
"b) No road, way or bridge shall be built, established, or suffered to remain, from said premises westerly across the Kirk Ditch, so-called.
"c) No business for the retail sale of food, beer, wine, beverages, bait, ice, novelties or other like merchandise shall be established, or suffered to remain within an area of 500 feet to the north and 500 feet to the south of Grantors' existing carry-out store and extending 400 feet west of the centerline of Buck Road within said north and south limits, for a period of ten (10) years from the date of conveyance of said premises to Grantee.
"d) Grantors reserve, for themselves, their heirs and assigns, the right, easement and privilege to use for drainage purposes the existing ditch along the westerly boundary of said premises for the benefit of their premises adjoining premises sold herein upon the North, together with the right of entry upon said premises sold herein for the purpose of repairing said ditch and removing obstructions.
"e) Grantors reserve crops growing upon said premises together with the right to remove same.
"f) Said premises are subject to all legal highways."
The prerequisites for a covenant to run with the land are:
"`* * * (1) The intent of the original grantor and grantee must have been that the covenant run with the land; (2) the covenant must either "affect" or "touch and concern" the land in question; (3) there must be privity of estate between the party claiming the benefit of the covenant and the party who is called upon to fulfill it. 21 Corpus Juris Secundum 923, Covenants, Section 54; 20 American Jurisprudence 2d 600, 601, Covenants, Section 30; 15 Ohio Jurisprudence 2d 19-22, Covenants, Sections 16-19.'" Peto v. Korach (1969),
In applying this standard, we conclude that the restrictions written into the deed conveying Parcel 1 of grantors' property to Gar Realty were *563
covenants that run with the land.1 The restriction precluding the establishment of a "trailer court" or placement of a "house trailer" on the property is a burden upon the conveyed property ("servient estate") in order to benefit the property from which it was taken ("dominant estate"). Hughes, supra, at 385, 25 O.O.2d at 381,
In addition, privity existed between the original covenantor and covenantee. The litigants in this action share the original covenantor as a common predecessor in title to their respective properties. Thus, LuMac, as the ultimate purchaser of the servient estate, is in privity with Buck Point, the current owner of the dominant estate. Peto, supra,
Moreover, it is clear that the intent of the parties at the time of the creation of the restrictive covenants was that these restrictions run with the land. In ascertaining intent, restrictive covenants are to be read as a whole. Slife v. KundtzProperties, Inc. (1974),
LuMac asserts that in order to overcome public policy favoring the unrestricted use of land, one must establish a "general scheme or plan" in the development of the property and notice of the scheme or plan must be given to the purchaser. SeeBailey Dev. Corp. v. MacKinnon-Parker, Inc. (1977),
LuMac further argues that the restrictive covenants have terminated due to a passage of time. However, restrictive covenants may exist for so long as the estate to which they are annexed endures. Slife, supra,
In its second and third assignments of error, LuMac essentially requests that this court determine that "house trailer"2 and "trailer court" do not have the same meaning as "manufactured home" and "manufactured home park."3 LuMac premises its arguments on R.C.
In 1963, when the deed involved in this case was drafted, R.C.
"`House trailer' means any self-propelled and nonself-propelled vehicle so designed, constructed, reconstructed, or added to by means of accessories in such manner as will permit the use and occupancy thereof for human habitation, when connected to indicated utilities, whether resting on wheels, jacks, or other temporary foundation and used or so constructed as to permit its being used as a conveyance upon the public streets or highways." 130 Ohio Laws 1031, 1032.
Currently, R.C.
"`Manufactured home' means any nonself-propelled vehicle transportable in one or more sections, which in the traveling mode, is eight body feet or more in width or forty body feet or more in length or, when erected on site, is three hundred twenty or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning, and electrical systems contained therein. Calculations used to determine the number of square feet in a structure are based on the structure's exterior dimensions measured at the largest horizontal projections when erected on site. These dimensions include all expandable rooms, cabinets, and other projections containing interior space, but do not include bay windows."
The term "house trailer" is no longer statutorily defined.
In construing deed restrictions limiting the use and enjoyment of real property, the intention of the parties as evidenced by the terms of the restriction and the surrounding circumstances, both of the parties and the subject matter, at the time of execution is the fundamental consideration. Hitz v.Flower (1922),
The ordinary meaning of both "house trailer" and "manufactured home" as defined in the Ohio Revised Code is essentially the same. Both relevant code sections refer to nonself-propelled vehicles which may be used as dwelling places. The 1984 version of the code also includes other terms unknown in 1963; to wit, recreational vehicle, travel trailer, motor home, and truck camper. None of the definitions of these latter terms encompasses the meaning intended by the grantors in the case at bar.4 In our opinion, it is obvious from the circumstances at the time of conveyance that the grantors intended that the grantees be unable to place vehicles designed to be used as dwelling places on the conveyed land. The fact that the nomenclature for such vehicles has changed does not serve to defeat the intent of the grantors, but rather reflects the growth of the relatively recent concept of a "mobile home mode of living." Swigart, supra, 87 Ohio Law Abs. at 40, 178 N.E.2d at 111. See, also, McBride, supra,
LuMac last argues that the enforceability of the restriction against house trailers must be based upon the structure's condition at the situs, i.e., the structure when placed upon the servient estate can be deemed a "permanent" dwelling and, therefore, can no longer be classified as a house trailer, mobile home or the like.
The trial court failed to determine this issue. The decision as to whether the use of a particular type of "mobile home" as a dwelling violates a specific restrictive covenant rests upon the facts and circumstances before the court. *567 Swigart, supra, 87 Ohio Law Abs. at 40, 178 N.E.2d at 111;McBride, supra,
Upon consideration whereof, this court finds that substantial justice has been done the party complaining, and the judgment of the Ottawa County Court of Common Pleas is affirmed. Costs of this appeal assessed to appellant.
Judgment affirmed.
HANDWORK, P.J., CONNORS and A.R. RESNICK, JJ., concur.
"(Q) `Recreational vehicle' means a vehicular portable structure designed and constructed to be used as a temporary dwelling for travel, recreational, and vacation uses and being classed as follows:
"(1) `Travel trailer' means a nonself-propelled recreational vehicle not exceeding an overall length of thirty-five feet, exclusive of bumper and tongue or coupling, and includes a tent type fold-out camping trailer as defined in division (S) of section
"(2) `Motor home' means a self-propelled recreational vehicle constructed with permanently installed facilities for cold storage, cooking and consuming of food, and for sleeping.
"(3) `Truck camper' means a nonself-propelled recreational vehicle, without wheels for road use, and designed to be placed upon and attached to a motor vehicle. Truck camper does not include truck covers which consist of walls and roof but do not have floors and facilities for using same as a dwelling."