Gnau v. Kinlein

Hammond, J., delivered the opinion of the Court. Arthur Gnau and Estelle Gnau, his wife, the common grantors of lots in a development in Baltimore County restricted to residential use, appeal from an injunction issued at the instance of owners of houses in the development against using for commercial purposes the lots they still own. In 1946 the Gnaus bought an unimproved tract of land of some eight acres, with a frontage of about nine hundred feet on the east side of Loch Raven Boulevard south of Taylor Avenue. In April 1947, one Medtart arranged with the Gnaus to buy a one hundred-foot building lot in the tract.

Medtart’s lawyer, Rudolph J. Machovec, was employed by the Gnaus to prepare a deed of the land from them to him as straw man and a deed back to them. The deed to the straw man recited that the grantors had caused the tract to be subdivided into lots as shown on a plat filed with and expressly made a part of the deed, and continued: “WHEREAS the Grantors are desirous of subjecting all of said tract of land and the lots shown on said plat to certain covenants agreements restrictions conditions and charges as hereinafter set out and AVHEREAS in order to make said covenants agreements restrictions conditions and charges binding and of full force and effect on all the land included in said tract and the lots shown on said plat and upon the present and future owners and occupants of the same their and each of their heirs executors administrators successors and assigns the Grantors and Grantee have agreed to enter into this Deed and Agreement whereby the Grantors will convey to the Grantee all the lots shown on said Plat and immediately thereafter the Grantee will reconvey to the Grantors charged with all the covenants ⁴⁶ agreements restrictions conditions and charges hereinafter set out all the said lots.” The grant of the thirteen lots shown on the plat, entitled “Eoch Knoll Manor”, was made “subject to the covenants agreements restrictions conditions and charges hereinafter set out”, and the habendum clause said that the lots were to be held by the Grantee his heirs and assigns “subject however to the following covenants agreements restrictions conditions and charges which it is hereby covenanted and agreed shall be binding upon the Grantors their heirs and assigns and upon the Grantee his heirs personal representatives and assigns and upon all the land included in said tract * * There followed ten restrictions as to the lots including those as to the uses of the lots, setback distances, the minimum cost of houses, side yard widths, the percentage of the lot to be covered, and the restriction with which the present appeal is particularly concerned, that “the land included in said tract shall be ■ used for private residence purposes only and no building of any kind whatsoever shall be erected or maintained thereon other than a brick or stone dwelling house”, except that a second floor might be of clapboard construction. Then came the following covenant: “And it is further covenanted and agreed by and between the parties hereto that no sale lease mortgage disposition or transfer thereof shall be made or operate otherwise than subject to the aforesaid covenants agreements restrictions conditions and charges as to and upon the use and occupancy that neither the said parties nor either of them their or either of their heirs personal representatives successors or assigns will do or suffer or permit to be done any of the matters or things above mentioned excepting only as aforesaid and that all the covenants agreements restrictions conditions and charges herein contained shall run with and bind the land and each and all of the above' mentioned lots and premises and every part thereof and the heirs personal representatives successors or assigns of each and all of the parties hereto and shall be kept and performed by and inure to the benefit of and be enforceable by all and every person and persons and bodies politic or corporate at any time owning or occupying said ⁴⁷ land property premises or interest or estates of any of them but no owners or occupants shall be responsible except for his her or its acts or defaults while owner or occupants.” The deed from the straw man to the Gnaus reconveyed the thirteen lots as shown on the plat of Loch Knoll Manor and its habendum clause subjected the property conveyed to “the covenants agreements restrictions conditions and charges” in the deed from the Gnaus to the straw man. The deeds were executed on April 30, 1947, the plat was prepared, and on June 17, 1947, the deeds and the plat were duly recorded among the Land Records of Baltimore County.

Four days later the Gnaus conveyed lot 9 as shown on the plat to Med-tart and wife. This deed neither included nor made reference to any restrictive covenants. In 1954 the Gnaus repurchased lot 9, taking a deed in which there was no mention of such covenants. In 1949 lots 1 and 2 were deeded by the Gnaus to purchasers and the deed contained no covenants nor reference to the covenants.

Several weeks later, lots 7 and 8 were conveyed by a deed which provided that the lots were to be held “subject to the restrictive covenants” set forth in the deed from the Gnaus to Machovec. Lots 5 and 6 were conveyed in 1950 by a deed which did not refer to the covenants, and the purchaser three years later by a similar deed transferred the property to its present owners. Later in 1950, lots 3 and 4 were conveyed and the habendum clause of the deed contained the same language as that in the deed to lots 7 and 8, namely, that they were to be held “subject to the restrictive covenants” set forth in the Gnau-Machovec deed. In 1956 the Gnaus applied to the Zoning Commissioner of Baltimore County for reclassification of lots 9 to 13 in Loch Knoll Manor from “A” Residential to “E” Commercial, and procured a permit for, and erected, a sign proclaiming that a professional building would be built on the lot.

Thereupon the owners of lots 1 and 2, the immediate grantees of the Gnaus, the owners of lots 3 and 4, likewise immediate grantees of the Gnaus, and the owners of lots 5 and 6, who took title from an immediate grantee, filed a bill of complaint to enjoin the Gnaus from proceeding directly or indirectly in violation of their express covenants, restrictions and agree ⁴⁸ ments relating to their property known as lots 9 to 13, inclusive, of Loch Knoll Manor. After hearing, the chancellor granted the injunction prayed. The Gnaus base their right to reversal on three claims: (1) that the restriction to residential use does not bind lots 9 to 13, the portion of the original tract now owned by them; (2) that if the restriction once was binding on these lots it has been waived by each of the appellees; and finally (3) that the character of the neighborhood has so changed that the restriction can no longer serve any useful purpose and therefore enforcement would be oppressive and unreasonable to the appellants and without benefit to the appellees or their properties. As to the first point, the Gnaus claim that when Machovec reconveyed the thirteen lots to them in 1947 no one else had any interest in the land, and they could transfer it subject to restrictions or without restrictions, as they chose; that in none of the deeds from them to purchasers of lots did they covenant or agree that the land retained by them would be subject to any restrictions; and that there was no general and uniform plan of development which would entitle lot holders to enforce a covenant against them.

We can find no legal substance or weight in any of these claims. Whether a restrictive covenant is personal to a grantee or a grantor, or to both, or binds their respective