How do I get my plans for a storage building approved by HOA if one has not been formed?
Full Question:
Answer:
Please see the information below to determine applicability.
The following are WA statutes:
RCW 58.17.215 When any person is interested in the alteration of any
subdivision or the....
When any person is interested in the alteration of any subdivision or the
altering of any portion thereof, except as provided in RCW 58.17.040(6),
that person shall submit an application to request the alteration to the
legislative authority of the city, town, or county where the subdivision is
located. The application shall contain the signatures of the majority of
those persons having an ownership interest of lots, tracts, parcels, sites,
or divisions in the subject subdivision or portion to be altered. If the
subdivision is subject to restrictive covenants which were filed at the
time of the approval of the subdivision, and the application for alteration
would result in the violation of a covenant, the application shall contain
an agreement signed by all parties subject to the covenants providing that
the parties agree to terminate or alter the relevant covenants to
accomplish the purpose of the alteration of the subdivision or portion
thereof.
Upon receipt of an application for alteration, the legislative body shall
provide notice of the application to all owners of property within the
subdivision, and as provided for in RCW 58.17.080 and 58.17.090. The notice
shall either establish a date for a public hearing or provide that a
hearing may be requested by a person receiving notice within fourteen days
of receipt of the notice.
The legislative body shall determine the public use and interest in the
proposed alteration and may deny or approve the application for alteration.
If any land within the alteration is part of an assessment district, any
outstanding assessments shall be equitably divided and levied against the
remaining lots, parcels, or tracts, or be levied equitably on the lots
resulting from the alteration. If any land within the alteration contains a
dedication to the general use of persons residing within the subdivision,
such land may be altered and divided equitably between the adjacent
properties.
After approval of the alteration, the legislative body shall order the
applicant to produce a revised drawing of the approved alteration of the
final plat or short plat, which after signature of the legislative
authority, shall be filed with the county auditor to become the lawful plat
of the property.
This section shall not be construed as applying to the alteration or
replatting of any plat of state-granted tide or shore lands.
RCW 58.17.040 The provisions of this chapter shall not apply to:
The provisions of this chapter shall not apply to:
(1) Cemeteries and other burial plots while used for that purpose;
(2) Divisions of land into lots or tracts each of which is one-one
hundred twenty-eighth of a section of land or larger, or five acres or
larger if the land is not capable of description as a fraction of a
section of land, unless the governing authority of the city, town, or
county in which the land is situated shall have adopted a subdivision
ordinance requiring plat approval of such divisions: PROVIDED, That for
purposes of computing the size of any lot under this item which borders on
a street or road, the lot size shall be expanded to include that area
which would be bounded by the center line of the road or street and the
side lot lines of the lot running perpendicular to such center line;
(3) Divisions made by testamentary provisions, or the laws of descent;
(4) Divisions of land into lots or tracts classified for industrial or
commercial use when the city, town, or county has approved a binding site
plan for the use of the land in accordance with local regulations;
(5) A division for the purpose of lease when no residential structure
other than mobile homes or travel trailers are permitted to be placed upon
the land when the city, town, or county has approved a binding site plan
for the use of the land in accordance with local regulations;
(6) A division made for the purpose of alteration by adjusting boundary
lines, between platted or unplatted lots or both, which does not create any
additional lot, tract, parcel, site, or division nor create any lot, tract,
parcel, site, or division which contains insufficient area and dimension to
meet minimum requirements for width and area for a building site;
(7) Divisions of land into lots or tracts if:
(a) Such division is the
result of subjecting a portion of a parcel or tract of land to either
chapter 64.32 or 64.34 RCW subsequent to the recording of a binding site
plan for all such land;
(b) the improvements constructed or to be
constructed thereon are required by the provisions of the binding site
plan to be included in one or more condominiums or owned by an association
or other legal entity in which the owners of units therein or their
owners' associations have a membership or other legal or beneficial
interest;
(c) a city, town, or county has approved the binding site plan
for all such land;
(d) such approved binding site plan is recorded in the
county or counties in which such land is located; and
(e) the binding
site plan contains thereon the following statement:
"All development and
use of the land described herein shall be in accordance with this binding
site plan, as it may be amended with the approval of the city, town, or
county having jurisdiction over the development of such land, and in
accordance with such other governmental permits, approvals, regulations,
requirements, and restrictions that may be imposed upon such land and the
development and use thereof. Upon completion, the improvements on the
land shall be included in one or more condominiums or owned by an
association or other legal entity in which the owners of units therein or
their owners' associations have a membership or other legal or beneficial
interest. This binding site plan shall be binding upon all now or
hereafter having any interest in the land described herein."
The binding
site plan may, but need not, depict or describe the boundaries of the
lots or tracts resulting from subjecting a portion of the land to either
chapter 64.32 or 64.34 RCW. A site plan shall be deemed to have been
approved if the site plan was approved by a city, town, or county:
(i) In
connection with the final approval of a subdivision plat or planned unit
development with respect to all of such land; or
(ii) in connection with
the issuance of building permits or final certificates of occupancy with
respect to all of such land; or
(iii) if not approved pursuant to (i) and
(ii) of this subsection (7)(e), then pursuant to such other procedures as
such city, town, or county may have established for the approval of a
binding site plan;
(8) A division for the purpose of leasing land for facilities providing
personal wireless services while used for that purpose. "Personal wireless
services" means any federally licensed personal wireless service.
"Facilities" means unstaffed facilities that are used for the transmission
or reception, or both, of wireless communication services including, but
not necessarily limited to, antenna arrays, transmission cables, equipment
shelters, and support structures; and
(9) A division of land into lots or tracts of less than three acres that
is recorded in accordance with chapter 58.09 RCW and is used or to be used
for the purpose of establishing a site for construction and operation of
consumer-owned or investor-owned electric utility facilities. For purposes
of this subsection, "electric utility facilities" means unstaffed
facilities, except for the presence of security personnel, that are used
for or in connection with or to facilitate the transmission, distribution,
sale, or furnishing of electricity including, but not limited to, electric
power substations. This subsection does not exempt a division of land from
the zoning and permitting laws and regulations of cities, towns, counties,
and municipal corporations. Furthermore, this subsection only applies to
electric utility facilities that will be placed into service to meet the
electrical needs of a utility's existing and new customers. New customers
are defined as electric service locations not already in existence as of
the date that electric utility facilities subject to the provisions of this
subsection are planned and constructed.
The following is an example of a provision from a local ordinance:
Transfer of Authority to Homeowners’ Association
On the date occurring ten (10) years from the date these Restrictions are filed,
or such earlier date as may be chosen by the Developer, the duties, rights,
power and authority of two (2) members of the Architectural Review
Committee constituted hereby shall be assigned to the Homeowners’
Association, or if the Homeowners’ Association has been dissolved or
liquidated, then to the record individual Lot Owners other than the Developer
chosen by a majority vote of the individual Lot Owners to represent them.
From and after the date of such assignment, the Homeowners’ Association, or
if no Homeowners’ Association, then to the majority vote of the individual
Lot Owners other than the Developer, shall have the full right, authority and
power and shall be obligated to perform the functions of two (2) members of
the Architectural Review Committee as provided herein.
The following is a case from Indiana:
MAYER v. BMR PROPERTIES, LLC, 830 N.E.2d 971 (Ind.App. 2005)
Ronald G. MAYER, Karen Mayer, Theodore Schenberg, Patricia Schenberg, Gary
Ryan and Lynn Ryan, Appellants-Plaintiffs, v. BMR PROPERTIES, LLC,
Appellee-Defendant.
No. 29A04-0501-CV-33.
Court of Appeals of Indiana.
July 15, 2005.
Appeal from the Hamilton Superior Court, William Hughes, J.
Page 972
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN
OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
Page 973
Peter S. French, Paula Zelman Finch, Sara R. Bradbury, Lewis &
Kappes, Indianapolis, for Appellants.
Lante K. Earnest, Charles R. Whybrew, Tabbert Hahn Earnest &
Weddle, Indianapolis, for Appellee.
OPINION
BAKER, Judge.
The central dispute in this appeal from the trial court's
interlocutory order refusing to grant a preliminary injunction is
whether certain restrictive covenants on property located in
Hamilton County known as Village Farms Hills `n Dales (Hills `n
Dales) prohibit the appellee-defendant BMR Properties, LLC (BMR)
from building more than one single family home on a particular
tract in that subdivision. Appellants-plaintiffs Ronald and Karen
Mayer, Theodore and Patricia Schenberg and Gary and Lynn Ryan
(collectively, the appellants), appeal from the denial of their
request for a preliminary injunction against BMR.
Specifically, the appellants contend that the trial court erred
in denying their request for injunctive relief that would have
prevented BMR from building a fifteen-home neighborhood that
violated certain covenants and restrictions that allegedly
encompassed the subdivision. Concluding
Page 974
that BMR's property was not bound by the restrictions and
covenants under these circumstances, and further observing that
the general language that was included in the various deeds that
the grantees would take the property "subject to" restrictions
and covenants are to be considered words of qualification and not
ones of contract, we affirm the trial court's denial of the
appellants' request for injunctive relief.
FACTS
Ralph Wilfong was the managing partner of Thirty-One Realty
Investment Company (Thirty-One), an Indiana partnership. In 1973,
the company purchased a number of acres of real estate near 151st
Street and U.S. 31 in Hamilton County. Sometime during the late
1970s, Thirty-One separated the property — near what is now the
Monon Trail and U.S. 31 — into at least nineteen tracts.
Thirty-One developed seventy-five acres into a low-density,
estate home community of "mini-farms" that it named Hills `n
Dales. However, Thirty-One did not plat, publicize, or otherwise
identify those tracts.
The nineteen tracts vary in size from tract eighteen, which is
over fourteen acres, to tract twelve, which is less than one
acre. From the late 1970s to the present, Thirty-One took no
action to develop its property in an organized manner. To be
sure, Thirty-One did not publish or record a plat, and it never
recorded any supplemental declarations with regard to the
property. Also, no homeowner's association was ever formed.
On February 8, 1978, Thirty-One recorded some Restrictions in
the Hamilton County Recorder's Office as Instrument Number 9654,
located in book 153, pages 133-39 (the Restrictions). It also
recorded as Instrument Number 9655, located in book 153, pages
140-153, a "Declaration of Covenants and Restrictions"
(Declaration). The Declaration provided in part that:
Every numbered tract in the Development, unless it is
otherwise designated by the Developer, is a
residentail [sic] tract and shall be used exclusively
for single family residential purposes. No structure
shall be erected, placed or permitted to remain upon
any of the said residential tracts, except a single
family dwelling house and such outbuildings as are
usually accessory to a single family dwelling house.
Appellants' App. p. 32. The Declaration also permits additional
lands to be added to the covenants by the developer by either
filing and recording a plat of Hills `n Dales, or filing and
recording a supplemental Declaration of Covenants and
Restrictions by the declarant or its successor or by others upon
the approval of Hills `n Dales pursuant to a vote of its members.
The Restrictions further provided that
All tracts in this subdivision shall be known and
designated as residential tracts. No residential
building shall be erected, altered, placed or
permitted to remain on any tract other than one (1)
single family dwelling.
Appellant's App. p. 23.
Both the Restrictions and Covenants encumbered tract ten of the
Thirty-One property, and they do not describe, identify, or
reference any of the other tracts. When the other tracts were
conveyed, the deed in each instance stated that the conveyance
is:
Subject to area covenants and restrictions recorded
February 8, 1978 as Instrument # 9654, Book 153,
pages 133-139 and Instrument # 9655, Book 153, pages
140-153, in the Office of the Recorder of Hamilton
County, Indiana.
Appellant's App. p. 209-91, 314-16.
The Restrictions and Covenants reference the Hills `n Dales
subdivision, platted
Page 975
lands, supplementary declarations and a Hills `n Dales
Homeowners' Association. However, the "subdivision," platted
lands, supplementary declarations, and a Hills `n Dales
Homeowners' Association have never existed. Moreover, the
covenants and restrictions do not define the term "tract," and
they do not limit the number of tracts within the Hills `n Dales
area to those 19 tracts of the Thirty-One property.
Sometime after 1978, Thirty-One began conveying tracts to
individuals and various business entities. The Mayers own tract 6
of the Thirty-One property. Thirty-One had conveyed, among other
tracts, tract 6 to Wilfong, as an individual, in November 1983
and did not subject tract 6 to the Restrictions and Covenants.
Approximately four years later, Wilfong individually, conveyed
the property to the Mayers "subject to" the Restrictions and
Covenants. Additionally, at the time of purchase, the Mayers
entered into a purchase agreements where Wilfong states, "[Tract
6] is described by metes and bounds, has not been platted and
seller makes no representations as to [the] size or configuration
of Hills `n Dales Development." Appellee's App. p. 24-25. The
record does not contain any evidence that Thirty-One or its
successor filed and recorded either a plat or a supplemental
declaration to include tract 6 under the documents described
above. Also, there is no evidence that the addition of tract 6 to
the restrictions was ever approved by a vote of the members of
Hills `n Dales.
The Schenbergs own tract 13 of the property. In October 1978,
Thirty-One conveyed the property to them. The conveyance from
Thirty-One was specifically made "subject to" the Restrictions
and Covenants. As with the Mayer property, there was no evidence
that Thirty-One ever filed and recorded either a plat or a
declaration to include this tract under the above documents, and
the restrictions were not approved by a vote of the members of
Hills `n Dales.
The Ryans are the owners of tract 8 of the property. In
December 1980, Thirty-One conveyed the Ryan Property to Clarence
and Donna Crane by warranty deed. The conveyance from Thirty-One
to the Cranes was made subject to the Restrictions and Covenants.
In April 1981, the Cranes conveyed the Ryan Property to Charles
and Susan Judge by warranty deed. This conveyance was also made
"subject to" the Restrictions and Covenants. The Judges then
conveyed the Ryan Property to Donovon Brown by way of warranty
deed. The conveyance from the Judges to Brown was made "subject
to" the Restrictions and Covenants. In September 1994, Brown
conveyed the property to the Ryans by way of a warranty deed. The
conveyance from Brown to the Ryans was made only "subject to any
and all easements, agreements or restrictions of record," without
any specific reference to the Restrictions and Covenants.
BMR currently owns real estate on Greyhound Pass that is
referred to as tracts 9 and 19 of the Thirty-One property. These
tracts were included in an original drawing in the form of an
unrecorded plat of the land that was planned to be a part of the
Hills `n Dales subdivision. Thirty-One was a predecessor in title
to BMR with regards to tracts 9 and 19. The parties here agree
that tract 19 was never subject to the Restrictions and
Covenants.
In May 1981, Thirty-One conveyed tract 9 to Will Wright
Building Corporation (Will Wright) via warranty deed. The
warranty deed states that tract 9 is "subject to" the
Restrictions and Covenants. In September 1981, Will Wright
conveyed the tract 9 deed to John and Mary Kaiser via corporate
warranty. Unlike the conveyance from Thirty-One to Will Wright,
the
Page 976
conveyance to the Kaisers only subjects tract 9 "to easements,
agreements or restrictions of record." That is, the deed contains
no reference to the Restrictions and Covenants.
In August 1993, the Kaisers transferred tract 9 to Dr. James
Davis by way of warranty deed. Again, this deed did not make any
specific reference to the Restrictions and Covenants and only
states that tract 9 is "subject to taxes, conditions,
restrictions and easements of record." Tr. p. 241-43.
Thereafter, in December 1995, Dr. Davis transferred tract 9 to
John Lohrmann by way of a warranty deed. This deed states only
that tract 9 is "subject to any and all easements, agreements and
restrictions of record," and it did not make any specific
reference to the Restrictions and Covenants. Appellants' App. p.
246-48. Then, in April 1999, Lohrmann transferred tract 9 deed to
Freedom Farms, LLC by way of a quitclaim deed. That deed did not
subject tract 9 to any restrictions. In October 2000, Freedom
Farms transferred tract 9 back to Lohrmann through a quitclaim
deed. As before, the deed did not subject tract 9 to any
restrictions.
In November 2002, Robert Schneider, Michael Johns and Richard
Schneider formed BMR. In July 2003, Lohrmann transferred tract 9
to Robert through a warranty deed. The deed states that tract 9
was only "subject to any and all easements, agreements and
restrictions of record." Appellants' App. p. 263. In September
2004, Robert transferred tracts 9 and 19 to BMR via warranty
deed. The warranty deed did not subject either tract to the
restrictions or covenants. On the other hand, the Lawyers Title
Insurance Corporation issued a title commitment to the plats that
contained the following exception:
Subject to `Area Covenants and Restrictions' recorded
February 8, 1978 in Miscellaneous Record 153, Pages
133-139 and Pages 140-153 in the office of the
Recorder of Hamilton County, Indiana.
Appellants' App. p. 313.
After purchasing tracts 9 and 19, BMR combined the two tracts
for the purpose of developing a residential subdivision. The
appellants were aware of this plan, and BMR proceeded to
subdivide the property in order to develop what it called the
Bainbridge Subdivision. Bainbridge was to contain fifteen
separate residential building lots for the construction of
single-family residences. The project was ultimately approved by
Westfield Washington Township.
On September 10, 2004, BMR recorded a plat for the Bainbridge
subdivision plat. At the same time, BMR obtained a construction
loan of nearly one million dollars and began the development
project. Water and sewer lines have been constructed, streets
have been built and buffering trees have been planted along the
perimeter of the tracts upon which single-family homes, each
costing in excess of $600,000, will be located.
On October 6, 2004, the Mayers filed a complaint to enforce the
restrictions and covenants that purportedly applied to the
property. They sought injunctive relief, specific performance and
damages. In particular, the Mayers requested that the trial court
prevent BMR from constructing a fifteen-home neighborhood in
Bainbridge, purportedly in violation of the plain language of the
restrictive covenants of Hills `n Dales. An amended complaint was
filed, whereby the Mayers, Schenbergs and the Ryans requested the
trial court to enjoin the construction of improvements located on
BMR's property. The appellants asked for a preliminary injunction
to keep BMR from violating the restrictive
Page 977
covenants that limit each tract to one single-family home until
final disposition of the case at bar on the merits.
In response, BMR asserted that the restrictions and covenants
only encumbered tract 10 of the Thirty-One property because they
did not describe, identify, or reference any of the remaining
tracts. BMR alleged that tract 19 of the property was never
subject to the restrictions and covenants. Also, with respect to
tract 9, BMR maintained that the deed regarding the conveyance of
this property made no specific reference to the original
restrictions and covenants.
Following a hearing, the trial court issued an order on
November 19, 2004, denying the appellants' request for a
preliminary injunction. It reasoned that the appellants were not
reasonably likely to succeed on the merits for the reason that
the covenants and restrictions did not prevent BMR from
subdividing one tract of land into several lots.
In part, the trial court's order provided:
15. The court finds that Plaintiffs have no right toprohibit the subdivision of Tract 19 which is not now
and never has been subject to the covenants and
restrictions set forth in paragraphs 2 and 3.
Although Tract 19 was included in an unrecorded plat
drawing for Village Farms Hills n Dales, it has never
been properly added to the covenants as set forth in
Article II, Section 2 of the Declarations of
Covenants and Restrictions.
. . . . .
19. The provision of the covenants and restrictions
which the Plaintiffs seek to enforce to terminate the
development of Bainbridge is found at Article III
Section 1 of the Covenants and Restrictions described
in paragraph 3 above. This provision provides as
follows:
SECTION 1. IN GENERAL. Every numbered tract in the
Development, unless it is otherwise designated by the
Developer, is a residentail [sic] tract and shall be
used exclusively for single family residential
purposes. No structure shall be erected placed on
[sic] permitted to remain upon any of said
residential tracts, except a single family dwelling
house and such outbuildings as are usually accessory
to a single family dwelling house. All tracts of land
located within the Development which have not been
designated by numbering as residential building
tracts in the recorded plats may be designated to
other land use, including commercial, provided the
same is consistent with the development of a planned
community. Developer reserves unto itself the right
to change the character of the designated community
or other land use at any time in the future and where
necessary, to apply to the necessary governmental
body for such reclassification rezoning [sic] or
variance of use as needed to accommodate Developer's
planned use.
20. The provision set forth in paragraph 19 has not
been violated by the Defendants. They have subdivided
one tract into several lots which is not a prohibited
act under the covenants. Thus, if the covenants
apply, the acts of the Defendant to date are not in
violation of the covenants. It appears that the
Defendant might be in violation of the covenants if
it were to permit other than single family dwelling
houses and such outbuildings as are usually accessory
to a single family dwelling unit to be constructed on
a
Page 978
Bainbridge lot. The record herein does not permit
that finding.
Appellants' App. p. 10-12. The appellants now appeal from this
order.
DISCUSSION AND DECISION
I. Standard Of Review
As stated above, the appellants contend that the trial court
erred in denying their request for a preliminary injunction. In
essence, they maintain that the trial court misinterpreted the
language set forth in the restrictive covenants when it
determined that more than one single-family home could be built
on each tract of land. And they further claim that injunctive
relief should have been granted because valid restrictive
covenants were created through the deeds to the parties.
In resolving this issue, we first set forth the relevant
standard of review regarding the granting of injunctive relief.
An injunction is an extraordinary equitable remedy, which should
be granted only "in rare instances in which the law and facts are
clearly with the moving party's favor." Short On Cash.Net of New
Castle, Inc. v. Dep't of Fin. Insts., 811 N.E.2d 819, 823
(Ind.Ct.App. 2004). The grant or denial of a request for a
preliminary injunction rests within the sound discretion of the
trial court. PrimeCare Home Health v. Angels of Mercy Home
Health Care, LLC, 824 N.E.2d 376, 380 (Ind.Ct.App. 2005). Our
review is limited to whether the trial court clearly abused its
discretion. Short On Cash.Net, 811 N.E.2d at 822.
In order to obtain a preliminary injunction, the moving party
has the burden of showing by a preponderance of the evidence
that:
(1) the movant's remedies at law are inadequate, thus
causing irreparable harm pending resolution of the substantive
action;
(2) the movant has at least a reasonable likelihood of
success at trial by establishing a prima facie case;
(3) the
threatened injury to the movant outweighs the potential harm to
the non-movant resulting from the granting of the injunction; and
(4) the public interest would not be disserved. Robert's Hair
Designers, Inc. v. Pearson, 780 N.E.2d 858, 863 (Ind.Ct.App.
2002).
The movant must prove each of these requirements to obtain
a preliminary injunction. Id. If the movant fails to prove even
one of these requirements, the trial court cannot grant an
injunction. Titus v. Rheitone, Inc., 758 N.E.2d 85, 91
(Ind.Ct.App. 2001), trans. denied.
We also note that when special findings of fact and conclusions
of law are made in accordance with Indiana Trial Rule 52, this
court must determine whether the evidence supports the findings
and whether the findings support the judgment. Id. A judgment
will not be reversed without clear error. Id. Findings of fact
are clearly erroneous only when the record lacks evidence or
reasonable inferences drawn from the evidence to support them.
Id. Finally, inasmuch as the appellants are appealing from a
negative judgment, they must demonstrate that the trial court's
judgment is contrary to law. That is, the evidence of record and
the reasonable inferences therefrom are without conflict and lead
unerringly to a conclusion opposite that reached by the trial
court. Northern Elec. Co. v. Torma, 819 N.E.2d 417, 421
(Ind.Ct.App. 2004). We will not reweigh the evidence or judge the
credibility of any witness. However, while we defer substantially
to the trial court's findings of fact, we will evaluate questions
of law de novo. Id. at 421-22.
II. Injunction: The Restrictions and Covenants
In response to the appellants' arguments that the trial court
should have granted their request for injunctive relief,
Page 979
BMR points out that the restrictions and covenants do not prevent
it from subdividing the various tracts. We note that a covenant
is generally an agreement duly made "to do," or "not to do," a
particular act. The term "covenant" generally describes promises
relating to real property that are created in conveyances or
other agreements, and a covenant may be express or implied.
Crawley v. Oak Bend Estates Homeowners' Ass'n, 753 N.E.2d 740,
745 (Ind.Ct.App. 2001). A restrictive covenant is an agreement
between a grantor and a grantee in which the latter agrees to
refrain from using his property in a particular manner. Columbia
Club, Inc. v. American Fletcher Realty Corp., 720 N.E.2d 411,
417-18 (Ind.Ct.App. 1999). The covenanting parties' intent must
be determined from the specific language used and from the
situation of the parties when the covenant was made. Id. at
419. Furthermore, specific words and phrases cannot be read
exclusive of other contractual provisions. Id. In addition, the
parties' intentions must be determined from the contract read in
its entirety. Id. We attempt to construe contractual provisions
so as to harmonize the agreement. Id.
In light of the above, the appellants complain that the trial
court simply looked to the Declaration language quoted above in
isolation and erroneously concluded that BMR was entitled to
subdivide tract 9 so long as only single family residences were
placed on the lots. Contrary to this argument, there is no
evidence in the Restrictions and Covenants that Thirty-One — the
original grantor of the property — intended to limit the number
of tracts located within the Hills `n Dales area. As noted above,
the term "tract" is not defined in the restrictions and
covenants. And, as set forth in the covenants, the term
"Development" "shall mean and refer to such properties and
additions thereto, as are subject to the [the covenants] or any
supplemental [Covenants] under the provisions hereof."
Appellants' App. p. 31. Hence, there is no showing that
Thirty-One intended to limit the number of tracts within the
alleged Hills `n Dales to only those nineteen tracts of the
property owned by Thirty-One.
We also observe that Thirty-One could have placed a provision
in the covenants and restrictions forbidding the subdivision of
one tract into others. Thirty-One could also have followed the
normal practice of recording a legal plat, and it could have
formed a homeowners' association or filed supplemental
declarations in accordance with the language set forth in the
Declaration. However, Thirty-One chose not to perform any of
these actions. Just as compelling, we note that the appellants
have not presented any evidence to the trial court demonstrating
that Thirty-One intended Hills `n Dales to be comprised solely of
the nineteen tracts of the Thirty-One property. Hence, it is
apparent that the appellants have failed to satisfy their burden
of showing that the term "tract" was intended to mean the
nineteen tracts of the Thirty-One Property or that Thirty-One
intended not to allow the tracts to be subdivided. As a result,
the trial court did not err in denying the appellants' claim for
injunctive relief on this basis.
In conjunction with our discussion above, we again note that
the circumstances in this case show that (1) only tract 10 is
encumbered by the restrictions and covenants; (2) no other tract
or other property was ever identified by a supplemental
declaration because no such declaration was recorded; (3) no
other tract or other property was ever defined, identified, or
platted in any public instrument or record; and (4) a homeowners'
association has never existed.
That said, we have declared that restrictive covenants are
generally
Page 980
disfavored by law and will be strictly construed by the court,
which resolves all doubts in favor of the free use of property
and against restrictions. King v. Ebrens, 804 N.E.2d 821, 826
(Ind.Ct.App. 2004). Also, in determining whether a valid
restrictive covenant exists, a court must determine if a general
scheme or plan of development exists. Elliot v. Keely,
121 Ind.App. 529, 539-40, 98 N.E.2d 374, 379 (1951), trans. denied.
The lack of uniformity in restrictions in a subdivision is
evidence of the nonexistence of a general plan or scheme. Id.
The fact that a majority of lots are conveyed without reference
to restrictive covenants is evidence of the lack of a general
plan or scheme. McIntyre v. Baker, 660 N.E.2d 348, 352 n. 2
(Ind.Ct.App. 1996).
As indicated in the FACTS, Thirty-One owned numerous acres of
real estate. When establishing particular tracts, it did so in a
piecemeal fashion and did not prescribe to any common scheme or
plan. Thirty-One never recorded a supplementary declaration
subjecting the remaining tracts — other than tract 10 — to the
restrictions and covenants. The size of the tracts varied
greatly, Thirty-One never recorded a plat, no homeowner's
association was ever formed, and the various deeds do not reflect
the conveyance of tracts within a subdivision or development that
has been platted, organized or identified by a common plan or
scheme. For these reasons — as well as those discussed above, the
restrictions and covenants were not enforceable as to tract 9.
Finally, we note that even though some of the deeds included
language that the property was "subject to" covenants and
restrictions, it is our view that such terms do not constitute an
assurance that encumbrances either run with the land or that
successors or assigns are bound by them. Thus, even if we were to
conclude — solely for argument's sake — that the covenants and
restrictions did apply to the property, such language merely
makes the transfer of the various properties "subject to" any
potential adverse effects of the restrictive covenants, thus
limiting potential liability of the particular grantor.
Nonetheless, the appellants direct us to Wischmeyer v. Finch,
231 Ind. 282, 288, 107 N.E.2d 661, 664 (1952), Keene v. Elkhart
County Park and Rec. Bd., 740 N.E.2d 893, 897 (Ind.Ct.App.
2000), and Vierk v. Ritenour, 131 Ind.App. 547, 555,
172 N.E.2d 679, 683 (1961), for the proposition that the "subject to"
language set forth in the various deeds was sufficient to bind
tract 9 with regard to the covenants and restrictions. However,
those cases are distinguishable from the circumstances here.
Specifically, in Wischmeyer and Vierk, a plat had been
recorded. Also, in Keene, the interpretation of a covenant —
rather than its existence — was at issue. Although we have found
no Indiana case directly on point construing the "subject to"
language set forth in these deeds under similar circumstances, we
note that in Smith v. Second Church of Christ, Scientist,
Phoenix, Arizona, 87 Ariz. 400, 351 P.2d 1104 (1960), a
conveyance was made "subject to . . . building and other
restrictive covenants attaching to and running with the title,
set forth in particular in Book 103 of Deeds, page 111." The
Arizona Supreme Court determined that this particular statement
was insufficient to bind a piece of real estate. In so holding,
the Smith court stated:
The creating of new restrictions on the use of land
requires greater clarity and explicitness than are
found in the deeds here in issue. Restrictive
covenants will not be lightly inferred from the mere
reference in a `subject to' clause to a recorded
instrument which contains otherwise inapplicable
burdens.
Page 981
Id. at 1108. The Smith court went on to note that the words
"subject to" are words of qualification and not of contract.
Id. at 1108-10.
Like the circumstances in Smith, we agree that the "subject
to" clauses used in the various deeds here were simply not
sufficient to impose the restrictions and covenants as to tract
9. As a result, for these additional reasons, we conclude that
the trial court properly denied the appellants' request for
injunctive relief.
The judgment of the trial court is affirmed.
KIRSCH, C.J., and BARNES, J., concur.
