Bernui v. Tantallon Control Committee

BISHOP, Judge. Betty E. Bernui appeals an order of the Circuit Court for Prince George’s County which permanently enjoined her from proceeding with the construction of a home because its plans and specifications did not meet the requirements of the general plan of development for the community. The subject of the dispute is a portion of a lot, conveyed without restrictions, located in the restricted residential development referred to generally as the “Tantallon” community. Appellant asks whether the chancellor erred when he found that the “Tantallon” covenants constituted a uniform general plan of development to which her lot was subject and that appellant’s plans did not meet the requirements of those covenants.

FACTS In January 1963, as part of its plan to develop the “Tantallon on the Potomac” subdivision in Prince George’s County, the Isle of Thye Land Company recorded a “Declaration of Covenants” regarding certain blocks of lots contained on several subdivision plats. The declaration provided, inter alia, that (1) no one-story residential structure shall be constructed which has a habitable floor area of less than 1,800 square feet, exclusive of basements, porches, patios and garages, (2) no structure shall be erected which does not have a garage under the residence, or a closed garage attached to the dwelling or connected by a breezeway, and (3) no improvement shall be erected unless its ¹¹ “cost, type and size” have been approved, in writing, by the “Tantallon Control Committee” (appellee). In May 1968, as part of its plan to develop the “Tantallon Hills” subdivision, located near “Tantallon on the Potomac”, the Tantallon Country Club, Inc., recorded a “Declaration of Covenants” which adopted by reference the conditions in the “Tantallon” declaration described above. The declaration detailed the various lots covered by the adopted covenants.

In December 1968, the Tantallon Country Club, Inc. acquired a nine acre parcel of land located adjacent to the “Tantallon Hills” subdivision. In May 1983, appellant purchased her lot, in the “Plat Seven, Tantallon Hills” subdivision. That lot included land which had initially been subject to the restrictions as well as land which was a part of the parcel acquired in December 1968, which was not explicitly subject to the restrictions. The parties stipulated that (1) the May 1968 “Declaration of Covenants” affects only that portion of appellant’s lot north of (above) the dotted line on the following diagram; (2) there are no covenants of record affecting the portion of the appellant’s lot south of (below) the dotted line; and (3) appellant’s home was to be constructed south of the dotted line. ¹² Appellant was aware that the "Tantallon" Community `in general was subject to restrictive covenants regarding the construction of homes, but was told by the real estate brokers, prior to her purchase and at settlement, that her lot was not subject to any of these restrictions.

There were no restrictive covenants in appellant's deed. ¹³ In June 1983, appellant prepared to put a modular home on the lot. In the middle of September, after she had started construction, appellant was notified by a Mr. Benson, who identified himself as the president of the Tantallon Control Committee (appellee) that her lot was subject to restrictive covenants and that she could not proceed with construction unless she got approval from the appellee. By that time, the engineering work, excavation and grading had been completed, the walls were under construction and appellant had spent approximately $9,336.00 in the process. On September 16, appellant received a letter from Gary R. Alexander, an attorney representing adjacent and nearby property owners, the Tantallon Citizens Association, and the appellee, which stated that he had been advised that the property was subject to restrictive covenants and specified that “the proposed house does not meet the square footage requirements, garage requirements, and other covenants.” Mr. Alexander’s letter also stated that he had been authorized to take any legal steps necessary to insure compliance with the covenants.

Appellant submitted a set of building plans to the appellee. She was notified by letter that her “request for construction” was denied because the plans and specifications (1) did not provide for a double car garage, and (2) provided for only 1,175 square feet of living space, exclusive of basements, porches, patios and garages, which fell “unacceptably short” of the required 1,800 square feet. When appellant proceeded with construction of the home in accordance with those plans, appellee filed a bill of complaint for the injunction which was granted by the circuit court. Discussion In McKenrick v. Savings Bank, 174 Md. 118 , 197 A. 580 (1938), the Court summarized the law regarding uniform general plans of development of land, and the enforcement of restrictions on the use of land, subject to those general plans: ¹⁴ ... one owning a tract of land, in granting a part thereof, may validly impose upon the part granted restrictions upon the use thereof for the benefit of the part retained, and upon the part retained for the benefit of the part granted, or upon both for the benefit of both; that, where the covenants in the conveyance are not expressly for or on behalf of the grantor, his heirs and assigns, they are personal and will not run with the land, but that, if in such a case it appears that it was the intention of the grantors that the restrictions were part of a uniform general scheme or plan of development and use which should affect the land granted and the land retained alike, they may be enforced in equity; that covenants creating restrictions are to be construed strictly in favor of the freedom of the land, and against the person in whose favor they are made; and that the burden is upon one seeking to enforce such restrictions, where they are not specifically expressed in a deed, to show by clear and satisfactory proof that the common grantor intended that they should affect the land retained as a part of a uniform general scheme of development. 174 Md. at 128 , 197 A. 580 .

In Steuart Transp. Co. v. Ashe, 269 Md. 74 , 304 A.2d 788 (1973), the Court explained that since “the intention to establish a uniform scheme or plan of development is a question of fact____” the chancellor’s findings will not be set aside “ ‘on the evidence unless clearly erroneous’ after giving due regard to the opportunity of the chancellor ‘to judge the credibility of the witnesses.’ ” 269 Md. at 89 , 304 A.2d 788 . See Rule 1086. Furthermore, the appellate Court will not “reverse the chancellor’s conclusions from the facts found by him if within the provisions of the applicable law unless they are clearly in error.” 269 Md. at 89 , 304 A.2d 788 .

In the case sub judice, the chancellor found that the parcel of land upon which appellant’s house was being built is not subject to the restrictive covenants. He added, however, that there is a general plan of development for the community, that the “basic plan covers the lots in ... [the ¹⁵ community] that are not covered by the restrictive covenants,” and that “the plan basically is the covenants, even though the covenants don’t apply____” In support, the chancellor relied upon the facts that most of the lots in the community were subject to the restrictive covenants, and that everyone in the community adhered to them. We hold that as a matter of law, these facts do not establish that the parcel of land at issue is governed by the restrictions of a general scheme. See, Steuart Transp.

Co. v. Ashe, 269 Md. 74 , 304 A.2d 788 (1973); Turner v. Brocato, 206 Md. 336 , 111 A.2d 855 (1955). In Turner v. Brocato, 206 Md. 336 , 111 A.2d 855 (1954) homeowners in a residential development whose lots were subject to restrictions against use for business brought an action to obtain a declaration that the appellee’s lot was part of the development and, as such, was similarly restricted even though there were no restrictions in appellee’s deed. 206 Md. at