INTRODUCTION
In West Virginia, although counties have the statutory authority to implement comprehensive land use plans and zoning districts, few have done so, resulting in land use regulations primarily being enforced within incorporated municipalities This lack of zoning in rural areas has led to the increased reliance on restrictive covenants for land development throughout the state.
In Virginia, residential subdivisions often utilize restrictive covenants alongside homeowners' associations to regulate land use and ensure essential services like road maintenance Understanding the law surrounding restrictive covenants in West Virginia is crucial for both attorneys representing developers and those assisting purchasers or homeowners, as property owners have the right to enforce these covenants.
4 As of July 1, 1997, only two counties have any comprehensive land use plans and/or zoning outside of municipalities Telephone Interview with David Pollard, Director of Planning for Fayette
5 The enabling legislation for municipalities is the same as for county commissions See W
6 Restrictive covenant is defined as
A provision in a deed limiting the use of the property and prohibiting certain uses.
In property law, a restrictive covenant is a contract between a grantor and grantee that limits the grantee's use and occupancy of land The primary aim of these covenants is to preserve or increase the value of neighboring properties by regulating the nature and use of the surrounding land.
BLACK'S LAW DICTIONARY 1315 (6th ed 1990).
Chapter 36B of the Uniform Common Interest Ownership Act is relevant to residential subdivision developments, and developers should give it careful consideration This legal framework, outlined in W VA CODE § 36B-1-101 to -207 (1997), provides essential guidelines that can impact the development process For further context, see the case Jubb v Letterle, 406 S.E.2d 465 (W Va 1991).
EVOLUTION OF RESTRICTIVE COVENANTS IN WEST VIRGINIA
Understanding the common law rules of covenants is essential, as many state laws regarding covenants are derived from these intricate and technical principles Familiarity with the foundational rules established in common law can provide valuable insights into the legal framework governing covenants today.
THE EARLY COMMON LAW: REAL COVENANTS
During the early common law," 0 which spanned from 1583, or earlier, to the mid-nineteenth century, courts only recognized what were called real covenants.
Real covenants, primarily affirmative in nature, were recognized by courts as running with the land under specific conditions Historically, early common law allowed only four negative covenants: easements for light, air, lateral or subjacent support of a building, and the flow of an artificial stream Most real covenants required the covenantor to perform affirmative acts related to the land, such as constructing a brick wall, as demonstrated in Spencer's Case Breaches of real covenants were enforceable by law, with damages as the sole remedy, as injunctive relief was not an option Understanding the complexities of real covenants involves examining five key elements: (1) the form of the covenant, (2) the intent of the parties for the covenant to run, (3) whether the covenant touches and concerns the land, (4) horizontal privity, and (5) vertical privity.
Form of Covenant
For a covenant to be enforceable between the original parties or their successors, it must be properly structured Under common law, covenants are considered an interest in land, necessitating compliance with all standard conveyance requirements.
10 See generally ROGER A CUNNINGHAM E" AL., THE LAW OF PROPERTY 466 (2d ed 1993).
11 See 2 AMERICAN LAW OF PROPERTY 402 (1952).
13 See CUNNINGHAM, supra note 10, at 469.
14 See generally id.at 469; 2 AMERICAN LAW OF PROPERTY, supra note 11, at 404-409.
WEST VIRGINIA LAW REVIEW particular, under the English statute of frauds, the conveyance had to be in writing, regardless of the duration of the covenant.
Intent to Bind Successors
To ensure that a covenant binds future assigns, the parties must demonstrate their intent for the covenant to run with the land Historically, courts assessed this intent based on the specifics of each case, focusing on whether the covenant was designed to benefit the land rather than merely obligate the covenantor to a personal action While explicit language indicating the intention to bind future successors was not always necessary, the law mandated that covenants involving non-existent elements must clearly state their applicability to future assigns For instance, in Spencer's Case, the court ruled that a covenant requiring the lessee to construct a brick wall on a tract of land needed explicit wording to bind future assigns, as the wall was not yet built.
Case, it did so state 7
Touches and Concerns
The "touches and concerns" element, while challenging to define, is essential in understanding covenants related to land This principle asserts that the benefits or burdens of a covenant must directly relate to the land itself, akin to Justice Stewart's famous remark about pornography: it's difficult to define, but recognizable when observed The core objective of this requirement is to ensure that the covenant impacts the land in a meaningful way, binding and benefiting it, rather than merely serving as a personal promise between individuals.
15 See generally CUNNINGHAM, supra note 10, at 475-476; 2 AMERICAN LAW OF PROPERTY, supra note 11, at 415-421.
17 Id at 72. is See generally CUNNINGHAM, supra note 10, at 471-475; 2 AMERICAN LAW OF PROPERTY, supra note 11, at 412-415.
The evolution of restrictive covenants in West Virginia focuses on subdivision plans and restrictions aimed at safeguarding property values These covenants, while impacting lots throughout a development, provide equal benefits to all tracts involved Ultimately, they serve to enhance the overall value of the land rather than allowing one party to exploit another for personal gain.
Horizontal Privity
Horizontal privity refers to the relationship between the original covenantor and covenantee necessary for a covenant to run with the land This relationship requires a conveyance between the parties, establishing horizontal privity Importantly, the grantor does not need to transfer their entire estate to the grantee; transferring a portion is sufficient Consequently, adjoining landowners cannot create binding covenants for future successors without horizontal privity Historically, under early English common law, covenants were only able to run with the land when the original parties were in landlord-tenant relationships.
1834, in the case of Keppell v Bailey,' the court concluded that horizontal privity was satisfied only by a landlord-tenant relationship.'
Vertical Privity
Vertical privity describes the relationship between a covenantor and their successors For a covenant to be enforceable with the land, each successor must obtain the same estate as the original covenantor.
20 See generally CUNNINGHAM, supra note 10, at 477-480; 2 AMERICAN LAW OF PROPERTY, supra note 11, at 409-410.
21 See generally JESSE DUKEMINIER & JAMES E KRIER, PROPERTY 855-859 (3d ed 1993);
Susan F French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S CAL L.
23 See DUKEMINIER & KRIER, supra note 21, at 857
24 See generally CUNNINGHAM, supra note 10, at 476-477; 2 AMERICAN LAW OF PROPERTY, supra note 11, at 410-412.
In West Virginia law, for a covenant to run with the land, horizontal privity—referring to the original conveyance between parties—does not necessitate the transfer of the entire estate from the grantor However, for the covenant to be binding on successors, they must inherit the same estate as their grantor A popular saying illustrates this concept: "real covenants run along with estates as a bird rides on a wagon." Therefore, if a successor acquires less than their grantor's estate, any attached covenants will not transfer to them.
THE BEGINNING OF MODERN COVENANT LAW
By the mid-nineteenth century, industrialization transformed land use and community development, leading to neighborhoods emerging around industrial sites This shift created a need for better land use control, as traditional real covenants, which only provided damages as a remedy, were inadequate for protection Consequently, landowners began to rely on contract law to enforce covenants that lacked the enforceability of real covenants.
The original parties sought to use contracts to navigate the issue of privity and extend covenants beyond landlord-tenant relationships However, the general non-assignability of contract rights rendered them ineffective for imposing land use restrictions What was essential was a property interest that could be enforceable against the original parties without privity and also be assignable In 1848, the landmark case Tulk v Moxhay allowed courts of equity to establish equitable restrictions, better aligning with the needs of landowners This development enabled landowners to create covenants among themselves with fewer restrictions, eliminating the need for conveyances or traditional landlord-tenant agreements.
25 See EDWARD H RABIN & ROBERTA ROSENTHAL KWALL, FUNDAMENTALS OF MODERN
The covenant's burden only applies to the estate of the covenantor if the entire estate is transferred to a successor Conversely, the benefit of the covenant can be passed on to the covanantee's successors through the transfer of the whole estate or a lesser portion derived from it.
28 See Uriel Reichman, Toward a Unified Concept of Servitudes, 55 S CAL L REv 1177,
The evolution of restrictive covenants in West Virginia has transformed the relationship between neighboring landowners, allowing for binding agreements that run with the land even without direct conveyance between parties This shift means that neighbors can now mutually secure their properties under specific rules, enhancing their collective benefit The technical aspects of equitable restrictions encompass several key elements: the form of the covenant, the intent of the parties for the covenant to run, the touch and concern of the covenant, as well as horizontal and vertical privity, and notice.
Form
Equitable restrictions, like real covenants, share similar concerns regarding their form A key requirement is that these restrictions, being interests in land, must be documented in writing to comply with the statute of frauds.
Intent for the Covenant to Run with the Land
Courts assess all evidence to determine if parties intended a covenant to run with the land, without needing specific wording The primary focus is on whether the intent was to benefit the land rather than impose personal obligations on the covenantor Additionally, for equitable restrictions, explicit language of intent is not required for covenants concerning matters that are not currently in existence.
30 See CUNNINGHAM, supra note 10, at 484-486.
33 See supra note 14 and accompanying text.
34 See generally CUNNINGHAM, supra note 10, at 490-491; 2 AMERICAN LAW OF PROPERTY, supra note 11, at 415-421.
The concept of a covenant touching and concerning the land is complex and cannot be simply defined It goes beyond being a mere personal obligation or promise; instead, it must either benefit or burden the land itself.
The key difference between real covenants and equitable restrictions lies in the concept of privity Real covenants require that the original parties create a binding covenant as part of a conveyance to affect successors, while equitable restrictions can be established independently of conveyances, though they often occur within them Typically negative in nature, equitable restrictions allow two parties, such as neighboring landowners, to agree on limitations regarding the use of their properties for mutual benefit, even if they acquired their land from different sources For instance, if neighbors A and B plan to develop their adjacent lands into a subdivision, they can collaboratively establish restrictions on land use to enhance their development efforts.
To enhance the appeal of their subdivision, the developers opted to impose a set of restrictions on the lots Although this covenant would not meet the legal requirements for vertical privity due to the absence of horizontal privity among the original parties, it could still be enforced as an equitable restriction under the updated legal framework.
35 See generally CUNNINGHAM, supra note 10, at 488-489; 2 AMERICAN LAW OF PROPERTY, supra note 11, at 412-415.
36 See generally CUNNINGHAM, supra note 10, at 491; 2 AMERICAN LAW OF PROPERTY, supra note 11, at 409-410.
To comply with the statute of frauds, any agreement must be documented in writing and filed with the county court clerk to provide official record notice, as outlined in West Virginia Code § 36-1-1 and § 40-1-9.
EVOLUTION OF RESTRICTIVE COVENANTS IN WEST VIRGINIA
Under "real covenants," it was noted that covenants followed the estate of a grantor and bound only successors who took the very same estate as their grantor.
Equitable restrictions are distinct from traditional estate rights, as they deeply integrate with the land itself, binding all successors who acquire any possessory interest This ensures that the benefits of a covenant remain intact, minimizing the risk of losing these benefits due to inadequate transfers to successors.
Notice
THE EARLY WEST VIRGINIA DECISION
The law of restrictive covenants in West Virginia originated from the case Robinson v Edgell in 1903, where the grantor imposed a clause prohibiting the sale of intoxicating liquors on the conveyed property This case did not address whether the covenant would bind future owners since the dispute was between the original grantor and grantee The plaintiff's appeal followed the lower court's refusal to enforce the covenant through an injunction.
In acknowledging the jurisdiction of a court of equity to enforce negative covenants restricting the use of real property, the court implicitly noted that in such cases
"damages" are not a sufficient remedy.! 9 In deciding whether the court should exercise its discretion and grant an injunction, the court explained,
The right to seek injunction relief is not absolute and is subject to discretionary jurisdiction, similar to the principles governing specific performance of contracts Relief is typically granted when a proper case is presented; however, if granting such relief would result in injustice or fail to achieve a meaningful outcome, it may be denied This is particularly relevant when restrictive covenants in property deeds were established based on the existing conditions of the property and its surroundings, which may have changed over time, undermining the original intent of the covenants.
49 "The amount of damages, and even the fact that the plaintiff has sustained any pecuniary damages, are wholly immaterial." Id at 1028 (citation omitted).
In West Virginia, if enforcing a law creates an unfair and unreasonable burden on a property owner, equity may deny assistance, leaving the plaintiff to seek legal remedies Additionally, if the changes in circumstances result from the actions of the grantor or are agreed upon by them, equity will not intervene at their request.
The Robinson court highlighted the rationale behind the use of covenants, emphasizing the importance of the decision in affirming their "validity" without delving into the common law elements.
In the Robinson case, the court's decision, spanning eight pages, extensively addressed the defenses against enforcement put forth by the defendants Ultimately, the court dismissed these arguments and issued an injunction in favor of enforcement.
The defendants and their assigns retain the right to seek dissolution for any valid reason in the future This jurisdiction is fundamentally equitable and discretionary, limited to what equity, conscience, and justice require Consequently, the decree includes a condition to address potential changes that may arise.
The principle is commonly illustrated in cases concerning the rights of parties who hold town lots, which are subdivisions of a larger tract of land These lots often have restrictions placed on them through similar clauses in all deeds, aimed at maintaining a specific character or quality, such as residential use To facilitate easier and more profitable sales, the use of each lot for trade, manufacturing, commercial, or business purposes is explicitly prohibited.
While the clause does not create a direct obligation for the grantee to enhance the grantor's property, it does require the grantee to refrain from certain actions on their own lot Courts of equity view this arrangement as part of a broader plan aimed at benefiting the grantor's remaining property after the sale of individual lots Consequently, these provisions and restrictions are enforced similarly to how a court of law would address breaches of covenants associated with real property, ensuring that beneficial interests or rights are upheld for the grantees of other lots.
Robinson, 49 W Va at 1028 (citations omitted).
52 The defenses to enforcement of covenants will be addressed later in this Article See infra note 211 and accompanying text.
The evolution of restrictive covenants in West Virginia reflects a legal framework where the court may withdraw its coercive power if the grantor's actions or those claiming under them render the burden of the restriction inequitable and oppressive, leaving the parties to seek their own legal remedies.
In the Robinson case, the court assumed that the covenant ran with the land, as indicated by references to "defendants and their assigns" and the "grantor and those claiming under him." This assumption led the court to evaluate whether the facts were suitable for equitable relief, without analyzing the covenant against common law elements Subsequent rulings have emphasized the "intent" aspect of the common law rule but have similarly overlooked the critical touch and concern element inherent in these doctrines.
The discussion in the second case involving restrictive covenants to reach the West Virginia Supreme Court of Appeals, Withers v Ward, 54 begins with the following statement:
That restrictive covenants, such as are involved here, are valid and binding upon the parties, there seems to be little doubt Robinson v Edgell, 57 W Va 157, 49 S.E 1027; 7 R.C.L title,
Covenants serve as limitations on the estate conveyed, benefiting the grantor's retained interest When the grantor transfers any part of the remaining property, these covenants also benefit the grantee, effectively running with the land This means that the obligations and advantages of these covenants persist through successive property owners Each owner of a lot subject to a restrictive covenant is obligated to respect the restrictions for the benefit of all other lot owners within the same subdivision.
WEST VIRGINIA LAW REVIEW violate them, or attempts to violate them, the owner of each of the other lots has a cause of action against him 5
The Withers case involved a restrictive covenant mandating a fifteen-foot setback for buildings and stipulating that any structures on the lots must be used solely for residential purposes However, the defendant breached this covenant by failing to maintain the required setback and utilizing the building as a public garage, thus violating the residential use restriction.
The court in Withers, similar to the case in Robinson, started with the presumption of a valid restriction In a concise three-page ruling, the court determined that issuing an injunction was warranted.
The landmark case Cole v Seamonds marked a pivotal moment in West Virginia's legal history, as it was decided just three weeks after the Withers case In its ruling, the court concluded that the covenants in question were indeed binding, providing a significant examination of the historical context surrounding the subject matter.
57 In Withers, both plaintiff and defendant were remote grantees of a common grantor who placed the restrictions in the initial deeds of the lots in the subdivision Id.
While it is argued that the plaintiff's right to action for covenant violations is limited to a legal claim for damages, we disagree These covenants are inherently tied to the land and should be treated as such, allowing for equitable relief rather than solely monetary compensation.
Does the Structure Violate the Covenant?
Much of the insight in this area is courtesy of Ms Emma Jean Allred of
Huntington Two of the relevant decisions are the result of her attempts to prevent a "carport" from being built on an adjoining lot, owned by the Polings, in the
Wallace Circle Subdivision in violation of a set-back restriction 0 7 While Ms.
In the trial court, Allred demonstrated that the carport infringed upon the set-back restriction, leading to an injunction that allowed the Polings to construct a type of carport beyond the set-back line However, upon appeal, the court ruled that the construction permitted by the circuit decision was substantial enough to be classified as a "structure," thus violating the restriction The Supreme Court of Appeals subsequently remanded the case, instructing the circuit court to mandate the removal of any portion of the structure that breached the set-back zone established by the covenant in their title chain On remand, the circuit court ordered the removal of only the column while allowing the roof and room to remain, prompting Ms Allred to appeal once more.
The building line for lots facing Wallace Circle is defined, ensuring that any permanent structure's main foundation is set back from the street line of the circle This regulation is highlighted in the case of Allred v City of Huntington, 304 S.E.2d 358.
The circuit court made an error by permitting the structure to remain, as it is supported by a column and foundation located within the prohibited zone.
WEST VIRGINIA LAW REVIEW court's decision"' and again prevailed After noting that the intent of the parties in establishing the restriction is controlling, the court concluded,
In this case, the intent behind the "main foundation of any permanent structure" prohibition is to prevent the construction of roofs and room structures that the circuit court mistakenly allowed The original parties to the restrictive covenant likely aimed to allow only minor intrusions, such as eaves or awnings, into the setback area, ensuring access to light, air, and unobstructed views Modern construction techniques should not compromise the purpose of these restrictive covenants, which aim to maintain the integrity of setback lines by prohibiting main foundations from extending beyond them.
Again the case was "remanded with directions that the circuit court order that the
Polings remove that portion of the roof and room which violated the setback zone established by the restrictive covenants in their chain of title."" ' 4
Finally, because it is not uncommon for residential sub-divisions in West
Virginia to have restrictions prohibiting "mobile homes," the case of Billings v.
Shrewsbury," 5 is a decision worth noting In Billings, the issue involved a restriction against the placing of a mobile home in a residential subdivision." 6
116 The covenant provided that "[n]o building of temporary nature, nor trailer, nor mobile home, nor tent, except a child's tent, shall be erected or placed on the property "Id at 269.
EVOLUTION OFRFSTRICTIVE COVENANTS IN WEST VIRGINIA
The case examined the definition of a "mobile home" by analyzing two types of structures: a prefabricated sectional and a double wide unit made up of two separately towable components designed to be joined together The court's ruling offers significant insights into what qualifies as a mobile home.
"prefab" was not a mobile home,"' but the "double wide" was a "mobile home ' " 9
The Shrewsbury home, designed for stability, requires a permanent foundation akin to traditional stick-built homes due to its significant weight A manufacturer's representative confirmed that without this foundation, the warranty becomes void Additionally, once the sectional home is securely anchored, relocating it becomes as complex and costly as moving a conventional home, with expenses reaching approximately $4,000.
The Shrewsbury home’s construction reveals its unsuitability for frequent relocations, as essential elements like center cap shingles, ventilation, and heating systems were installed only after the main prefabricated sections were assembled Its design closely resembles that of a traditional stick-built home, featuring walls made of two-by-fours placed on 16-inch centers and roof trusses constructed with two-by-twos on the same spacing, all finished with lap siding on the exterior.
The Shrewsbury home presents a visually appealing design, resembling a typical single-family residence Evidence, including photographs, indicates that it compares positively to other houses within the subdivision, highlighting its aesthetic value.
The Trigg home qualifies as a mobile home according to legislative definitions, similar to the Shrewsbury house, as it comprises two towable units intended to be combined into a single structure However, unlike the Shrewsbury house, the Trigg units are specifically designed for easy separation and repeated relocation, with testimony confirming that they can be unbolted to facilitate independent movement.
The "double wide" trailer is designed to be supported by blocks on any solid surface, eliminating the need for a permanent foundation.
The Trigg unit, however, rests upon a permanent foundation and several witnesses testified that it can be moved only in one piece as a stick-built home.
The Triggs contend that this improvement renders the structure immobile and prevents it from being within the definition of a mobile home We disagree.
Mooring this structure to a cement block foundation does not change the essential nature of its construction.
Where the Structure Complies But the Use Does Not
In Allemong v Frendzel," 2 ' three acres out of a tract of 256 acres were conveyed subject to a restrictive covenant The restrictive covenant provided that
"[this conveyance is subject to the restriction that no alcoholic beverages of any kind shall be sold on said premises, and this covenant shall run with the land."' 2
Successors in interest to the 253 acres sought to enjoin the owners of a parcel of
1.06 acres, which was a part of the three acres subject to the restriction, from violating the covenant by selling alcoholic beverages at their convenience store 2 2
The court addressed the critical issue of standing, specifically whether the successors in interest of the 253-acre tract had the right to seek an injunction to enforce the restrictive covenant on the three-acre parcel separated from the original property While a common law analysis would typically consider the concept of privity, the West Virginia Supreme Court's approach may differ.
The enforcement of a restrictive covenant relies on the intent to benefit the land of the enforcer, making the determination of who can enforce such covenants a factual question The court emphasized the case-specific nature of this inquiry, noting that individual cases primarily serve to illustrate general principles In addressing the standing issue, the court concluded that the intent of the grantor, L.B Allemong, in imposing the restrictive covenant was to protect and preserve the neighborhood's quality.
Vincent and Mary Howard had standing to seek enforcement of the covenant as well because "as adjacent landowners to the restricted parcel, their land was
In 1997, the evolution of restrictive covenants in West Virginia highlighted a notable shift from traditional common law rules, particularly regarding privity requirements The Howards, described merely as "adjacent landowners," lacked both "horizontal" and "vertical" privity, indicating they were not successors in interest This change signifies a departure from previous legal standards, allowing for broader interpretations of restrictive covenants.
The court emphasized that the primary principle in interpreting covenants and restrictive agreements is the intention of the parties, derived from the entire document, surrounding circumstances, and the intended goals of the covenant It determined that the restriction was clear and not affected by the passage of time, thereby confirming that the ban on "alcoholic beverages" included beer sold at the defendants' convenience store In issuing the injunction, the court dismissed the defendants' claims that neighborhood changes undermined the covenant's objectives, deeming it still enforceable.
A typical scenario arises when a property owner seeks to utilize their home for business activities, as demonstrated in the case of Miller v Bolyard This case highlights the challenges posed by residential subdivision restrictions, which aim to maintain the integrity of the community The conflict emerged when the Bolyard family began conducting business operations from their residence, raising questions about the enforcement of these residential guidelines.
133 Id at 685 The relevant restrictions provided:
3 That the structure erected on said lots shall be used for residence purposes only exclusive of any other use whatsoever[;]
7 That the lot shall be used for construction of only one dwelling; the nature of which construction is limited to a single family residence;
8 That the dwelling erected on said lot shall not exceed two (2) stories in height, nor shall the same be provided with a private garage which exceeds two (2) automobiles in capacity;
10 That any garage or outbuilding permitted by these restrictions, whether or not attached to the principal dwelling, shall be of the same design and material as the
In a case reviewed by the West Virginia Law Review, a homeowner constructed a large garage measuring 24 feet wide, 40 feet long, and 18 feet high, located 185 feet from their house but only 27 feet from a neighboring plaintiff's residence The court determined that this garage, situated on a separate lot, breached existing restrictions on garage sizes Additionally, the court dismissed the defendants' claim that the plaintiffs had waived their right to object due to their inaction regarding another large garage positioned 150 yards away.
The court determined that the beauty shop's operation breached the subdivision's covenant, which mandated "residential purpose" use Additionally, the court dismissed claims that significant neighborhood changes undermined the covenants' intent and rejected the notion that the plaintiffs lacked "clean hands" due to car restoration activities conducted in their basement garage.
Do the Restrictions Apply to the Parcel in Question?
MISCELLANEOUS DECISIONS
The case of G Corp., Inc v MackJo, Inc demonstrates that restrictive covenants extend beyond residential contexts In this instance, the court determined the parties' intent by examining the language and stipulations outlined in the Declaration.
MackJo, the owner and developer of a light industrial park, conveyed 11.28 acres to G Corp along with a non-exclusive 40-foot easement leading from Corridor G The declaration's Section 6.01, titled "Covenants and Restrictions," explicitly states that no part of the industrial park may be used for residential purposes, ensuring that the property remains dedicated to industrial use.
MackJo granted Herman Fletcher a non-exclusive right-of-way and easement measuring forty feet in width for his adjoining land, intended for a residential subdivision The plaintiff attempted to block this use, claiming it violated the restriction against residential purposes However, the court dismissed the plaintiff's argument, emphasizing that the restriction stating "no part of the Industrial Park shall be used for residential purposes" was outlined in Article VI of the declaration, which includes several covenants and regulations.
The evolution of restrictive covenants in West Virginia is exemplified by agreements imposed on lots in Childress Place, particularly highlighted in Article IV regarding non-exclusive rights-of-way and Article VII, which discusses MackJo's plans to develop adjacent tracts utilizing the infrastructure of Childress Place The case of G Corp underscores the court's dedication to interpreting covenants in alignment with the parties' intent, emphasizing that the clear articulation of this intent is crucial for effective covenant enforcement.
In the case of McIntyre v Zara, the court issued a per curiam decision that overturned the lower court's summary judgment in favor of Mrs Zara The dispute arose when Mrs Zara sold approximately 1.497 acres from a larger 29.87-acre tract to the McIntyres Notably, there were no recorded restrictions, protective covenants, or reservations on the land at the time of the sale However, the deed for the property included specific terms that would later become significant in the legal proceedings.
By accepting this deed, the Grantees agree to adhere to any future restrictions, protective covenants, and reservations related to a subdivision that may be developed from the Grantor's adjacent real estate The Grantees and their successors will enjoy all rights and privileges associated with membership in the future Property Owners' Association.
Association for such sub-division, and shall comply with all restrictions, covenants, and reservations pertaining to such sub-
WEST VIRGINIA LAW REVIEW division and pertaining to membership in such future Property
Ten months after the McIntyres acquired the property, a declaration outlining various restrictions, covenants, and reservations for the planned subdivision was officially recorded The McIntyres specifically noted the restrictions detailed in paragraph "M."
The declaration specifies that all construction, excavation, additions, and remodeling within Skyline Estates Subdivision must be carried out by Skyline Contracting at fair market rates, unless objections arise Additionally, it states that no numbered lot can be subdivided without obtaining written consent from the Declarant or the Building Control.
All home construction, excavation, additions, and remodeling within Skyline Estates Subdivision must be carried out by Skyline Contracting at fair market rates, unless written approval is obtained from Skyline Contracting for other contractors to undertake a specific project.
The court determined that the restrictive covenant in this case met the requirements of the statute of frauds It reiterated the legal principles established in previous cases regarding covenants and emphasized the importance of ascertaining the parties' intentions.
As noted above, the McIntyres objected to the restrictions that prohibited the subdividing of lots and the "requirement" to use a certain builder If the
201 McIntyre, 394 S.E.2d at 899 See generally 2 AMERICAN LAW OF PROPERTY, supra note 11, at 415 (entitled "Land Which Parties Intend to be Benefitted").
In this case, the McIntyres' deed, despite being recorded after the declaration, explicitly states their agreement to adhere to any future declarations of restrictions and protective covenants related to the subdivision This clear reference to restrictive covenants within the deed meets the requirements outlined in W Va Code § 36-1-1 [1931].
205 See McIntyre, 394 S.E.2d at 900 "On remand the circuit court should allow the parties to present evidence concerning their intentions and the alleged agreement regarding the restrictive covenants." Id.
EVOLUTION OF RESTRICTIVE COVENANTS IN WEST VIRGINIA
McIntyres found the restrictions imposed after their purchase objectionable, the court said they should be granted rescission The court explained,
If the circuit court finds that the parties' intentions concerning the restrictive covenants significantly impact the contract's substance, it may order rescission, which is considered an extraordinary remedy, as established in Morrison v Waggy, 43 W VA 405.
27 S.E 314 (1897); Fearon Lumber and Veneer Co v Wilson, 51
W VA 30, 41 S.E 137 (1902) (rescission appropriate remedy when substance of the contract affected); Boyd v Pancake Realty
In the case of Co v 131 W VA 150, 46 S.E.2d 633 (1948), the court upheld the rescission of a contract due to a mutual mistake regarding an easement When a circuit court orders rescission, it aims to restore the parties to their original positions before the contract, which includes rescinding the deed, refunding the purchase price, and providing interest on that amount Additionally, the court may award costs and interest for any improvements made to the property.
The possibility that a party can be bound by restrictions placed upon land subsequent to his or her acquiring title thereto presents troubling aspects.
In legal contexts, notice is essential for binding parties, as established in Cole v Seamonds Although the McIntyre case did not explicitly address notice, the acceptance of the deed by the grantee, which included an agreement to future restrictions, constitutes actual notice The court suggests that allowing rescission for material restrictive covenants offers sufficient protection to purchasers However, resolving such issues often leads to litigation, prompting caution for attorneys advising clients on transactions that impose future restrictions.
206 Id "The Mclntyres' brief indicates that construction of a house was started on the land."
EQUITABLE CAUSES OF ACTION GIVE RISE TO EQUITABLE
Equitable defenses are inherently dependent on specific facts, making them fact-specific in nature The significance of case precedents lies in the broader discussion of the defense elements, along with the insights gained from applying these principles to particular situations.
The first case in West Virginia to address restrictive covenants 210 recognized that those who seek equitable relief are subject to equitable defenses 21
In the case of Robinson v Edgell, the court dismissed the defendant's claim that changes occurring after the imposition of the restriction rendered its enforcement unfair The court emphasized that these changes did not sufficiently alter the circumstances to justify the defendant's position.
Since the conveyance, no changes in conditions have occurred The lot was acquired with awareness of existing conditions and a deed stipulation that prohibits specific uses Allowing the grantee to bypass the restrictive clause by citing prior or simultaneous conditions would enable them to exploit their own actions instead of those of the grantor.
The right to seek an injunction is not absolute and is subject to discretionary jurisdiction, similar to the principles governing specific performance of contracts Relief is typically granted when a proper case is presented; however, if granting such relief would lead to injustice or prove ineffective, it may be denied For instance, if restrictive covenants were established based on the existing conditions of a property but those conditions have changed over time, making enforcement inequitable and burdensome for the lot owner, equity may refuse assistance and direct the plaintiff to seek legal remedies Additionally, if the changes in conditions result from the grantor's actions or consent, equity will not intervene at the grantor's request.
EVOLUTION OF RESTRICTIVE COVENANTS IN WEST VIRGINIA
In the case of Ballard v Kitchen, the court examined several equitable defenses, including the defendant's claims of laches and acquiescence, which argued that the plaintiff failed to object to the defendant's long-standing business operations on the property Additionally, the court considered the "clean hands" doctrine, highlighting the plaintiff's own violations of restrictive covenants related to the setback line and building materials Ultimately, the court ruled that the plaintiff's action was barred by both laches and acquiescence, reinforcing the importance of equitable defenses in legal proceedings.
Wallace v St Clair 219 is a pivotal case that significantly shapes our understanding of restrictive covenants and offers valuable insights into the defenses against their enforcement The court's discussion on the concept of waiver highlights key considerations in evaluating the applicability of these covenants.
"[t]he willingness of some lot owners in a subdivision to waive a building restriction is not binding on others who insist on its strict observance *** *,220
Related to waiver is acquiescence, and as to it the court said, "[m]ere acquiescence does not constitute abandonment so long as the restrictive covenant remains of any value.""'
A frequent objection to the enforcement of restrictive covenants is based on changes within the neighborhood The Wallace court clarified that alterations in neighborhood conditions alone do not justify the invalidation of such covenants.
In the case of Kaminsky v Barr, 145 S.E 267 (W Va 1928), the defendant presented several equitable defenses, including changes in the neighborhood, acquiescence by the plaintiff regarding other violations, and laches due to inaction on "temporary structures." Although the court dismissed these defenses, it did modify the injunction, allowing the defendant to use the setback restricted area for a front porch similar to the plaintiff's use.
220 Id at 756 (quoting 26 C.LS Deeds § 169 (1956)) (omission in original) See also Miller v.
WEST VIRGINIA LAW REVIEW defeat the right unless the changes are "so radical as practically to destroy the essential objects and purposes of the agreement." '
The Wallace court concluded that the trial court incorrectly applied the principle of estoppel, emphasizing that silence alone cannot establish estoppel For estoppel to be valid, it must be demonstrated that the individual in question had complete knowledge of the relevant facts and their rights, and intended to mislead or was at least willing for another party to be misled by their behavior.
In the case of Morris v Nease, the court highlighted that changes in a neighborhood's character can invalidate restrictive covenants on properties, a principle recognized in West Virginia Wallace's overview of equitable defenses emphasizes the significance of neighborhood changes and the concept of acquiescence in property law.
Changes can be categorized into those occurring within a restricted neighborhood and those in the surrounding unrestricted area The issue of changing conditions emerges when both the complainant's and defendant's properties are located within a restricted subdivision, yet the surrounding area has been altered by third-party actions, ultimately undermining the original building scheme of the subdivision without any fault of the lot owners.
American Law of Property 445-446 (A.J Casner ed 1952, emphasis added) [hereinafter cited as 2 American Law of
Changes in a neighborhood's character can often stem from violations within the subdivision itself, indicating that the issue is more about abandonment than external conditions Understanding this distinction is crucial for property owners and stakeholders when assessing neighborhood dynamics.
EVOLUTION OF RESTRICTIVE COVENANTS IN WEST VIRGINIA
Noting that changes in neighborhoods often occur through succeeding block-by-block changes 7 the court explained,
To prevent potential issues, most jurisdictions have established a principle that enforces restrictions on border lots in a restricted subdivision, provided that the original plan's benefits can still protect the interior lots This enforcement occurs even if border lot owners lose the most valuable use of their properties.
West Virginia recognizes that changes in neighborhood conditions alone do not invalidate the enforcement of restrictive covenants, unless these changes are so significant that they fundamentally undermine the core objectives and purposes of the agreement.
The court dismissed the alteration of neighborhood defense but acknowledged the plaintiff's acquiescence, labeling it as a personal equitable defense.
CONCLUSION
The lesson of the cases in West Virginia, and in particular Teays Farms v.
In Cottrill ° and G Corp Inc v MackJo, Inc., the court emphasized the importance of clearly expressing the original intentions of the parties regarding restitution in property It is essential that these intentions are explicitly stated in the document that establishes the restriction This principle is further supported by the lessons learned from Jubb v Letterle and Armstrong v.
Stribling 23 is that recorded plats do not necessarily determine the scope of land that is subject to the restrictions Unrecorded plats may be relied upon by the court to determine the parties' original intention.
The West Virginia Supreme Court of Appeals has largely overlooked the discussion of common law elements in covenant cases, where the requirement of privities is typically satisfied Consequently, the court's disregard for this element seems to have minimal impact However, in the case of Allemong v Frendzel, the court ruled that an adjoining landowner possessed the standing to enforce the covenant, a decision that contradicts common law principles and lacks support from prior West Virginia cases.
Allemong that the adjoining landowner had standing was made without adequate explanation 23 6 Therefore, it is submitted that the issue of the right of adjoining
229 Morris, 238 S.E.2d at 848 (citing 2 AMERICAN LAW OF PROPERTY, supra note 11, at 441-
Vincent and Mary Howard possess the legal standing to enforce the covenant due to their status as adjacent landowners to the restricted parcel, which was designed to benefit their property through the restrictive covenant.
The evolution of restrictive covenants in West Virginia necessitates a reevaluation by the courts, particularly regarding landowners who lack a common grantor or any form of privity or agreement that would grant them the right to enforce such covenants.
West Virginia is not alone in "simplifying" the common law rules of covenants and equitable servitudes While the West Virginia Supreme Court of
Appeals has focused on the element of "intent," the courts in some other jurisdictions have developed their bodies of law around "touch and concern.""
237 One other case in which the court addressed standing was Recco v Railway Co., 32 S.E.2d
449 (W Va 1944) The court's discussion in that case appears consistent with the common law rule:
When a landowner divides property into lots and sells them with identical covenants, subsequent buyers are charged with constructive notice of these covenants Although there is no legal privity among these buyers, allowing them to sue each other for covenant violations, an original or subsequent grantee can seek equitable relief to enforce compliance with the covenants, based on the notion of an equitable easement or servitude However, if changes in circumstances make enforcing the covenants inequitable or overly burdensome, courts will not grant such relief.
In the context of equitable easements or servitudes, privity between parties is not required for enforcement, as courts of equity can uphold covenants despite the absence of legal rights, particularly when a lot owner's misconduct violates these covenants However, if granting relief would be inequitable, the court will refrain from doing so Ultimately, the court assesses the equities between the parties involved, ensuring that no vested property rights are compromised in the process.
Id at 453 See generally 2 AlvMECAN LAW OF PROPERTY, supra note 11, at 415 (entitled "Land Which
Parties Intend to be Benefitted").
The central question in Spencer's Case was whether successors of a covenantor could be obligated by the covenant unless the parties explicitly stated it should bind "assigns." The court determined that the term "assigns" must be included for covenants concerning non-existent matters, but noted in dictum that it was unnecessary for existing matters This legal principle has been largely overlooked in American jurisprudence.
American legal decisions emphasize the importance of the intent of the covenanting parties over strict terminology, such as the use of the word "assigns." Courts focus on whether the covenant is intended to run with the land, rather than distinguishing between things that exist or do not exist in esse.
The intent of a covenant can be discerned from the surrounding circumstances, particularly through the use of the term "assigns," which strongly suggests an intention to bind successors A skilled draftsman will typically incorporate language indicating that the covenant is designed to be a running covenant, creating both burdens and benefits for future parties involved.