Ming Kuei Liu v. Dunnigan

Thompson, J., delivered the opinion of the Court. The complainants-appellees filed suit in the Circuit Court for Howard County to enjoin the appellant, Dr. Ming Kieu Liu, from using a part of his residence as a doctor’s office. From a decree granting the injunction, appellant has brought this appeal. The determination of the correctness of that decree hinges on the applicability and meaning of a restrictive covenant contained in a deed from a common grantor of the land of appellant and appellees.

The record shows that early in 1953 John David Engineering Corporation conveyed approximately 70.64 acres of land in Howard County to Wesley Johnson. Johnson and his wife conveyed the subject land to Frank T. Kline and ¹⁸⁰ his wife by deed dated June 10, 1953. The fifth WHEREAS clause of that deed provides: “WHEREAS, the said parties of the second part [Klines] have purchased certain of said lots and are desirous of cooperating with the developer [Johnsons] for the purpose of making the covenants, agreements, easements and restrictions hereinafter set forth binding alike upon the developer, his heirs and assigns, and the said parties of the second part, their assigns, the survivor of them, his, or her, heirs and assigns, as well as upon all the land included in said tract and designated as the ninety-four residential lots aforesaid; and,” The deed imposed several restrictive covenants on the land in the following language: “. . . and further subject, however, to and with the benefit of the following covenants, agreements, easements and restrictions, which it is hereby covenanted and agreed shall be binding upon the said developer, his heirs and assigns, and upon the said parties of the second part, their assigns, the survivor of them, his, or her, heirs and assigns, and upon all the land included in said tract hereby conveyed, that is to say: “(1) All the lots in said subdivision, as shown on said plat, or plats, except the block marked ‘Commercial, Subject to Applicable Zoning Regulations’, and heretofore reserved from the operation and effect of this deed and agreement, and which is designed for business or residential purposes, shall be known and described as residential lots and are so referred to hereinafter, and shall be used exclusively for private dwelling house purposes only and no structure shall be erected on said residential building lots other than a one-family dwelling and a one, or two, car garage ¹⁸¹ for the sole use of the respective owners, or occupants, of the lots upon which such garages are erected. “(7) The herein enumerated restrictions shall be deemed as covenants and not as conditions hereof, and shall run with the land and bind the parties hereto, their heirs and assigns, and all parties and persons claiming by, from, or under them, and upon all the land included in said subdivision, except where not applicable to the aforesaid business lots. “(8) If the parties hereto, or any of them, their heirs or assigns, shall violate, or attempt to violate any of the aforementioned covenants or restrictions, it shall be lawful for any other party, person or persons owning any other lot in said subdivision to prosecute any proceeding at law, or in Equity, against the party, person, or persons violating, or attempting to violate any such covenant or restriction, and either to prevent him, or them, from so doing, or to recover damages or other dues for such violation.” The Klines immediately reconveyed the subject land to the Johnsons except for 3 lots which are not involved in the instant case. On August 8, 1957, Johnson conveyed by deed 17.66 acres of the above-mentioned 70.64 acres to the Hamilton Heights Construction Company.

Hamilton Heights conveyed the 17.66 acre plot to Nob Hill Incorporated by deed dated April 3, 1961. 4.994 acres of that land were then conveyed by Nob Hill to William Robinson and his wife by deed dated June 9, 1971. On August 16, 1972, the Robinsons conveyed by deed a lot which was part of the aforementioned 4.994 acres to the appellants. On June 20, 1972, the Robinsons conveyed another portion of the 4.994 acres to Robert W. McColley and his wife, two of the appellees. ¹⁸² None of the above-mentioned deeds, including appellants’, made reference to the restrictive covenants except of course for the original deed from the Johnsons to the Klines. 1 Appellants’ sales contract however did contain the following pre-printed verbiage: “AND upon payment as above provided of the unpaid purchase money, a deed for the property containing covenants of special warranty and further assurance shall be executed at the Buyer’s expense by the Seller, which shall convey the property to the Buyer. Title to be good and merchantable, free of liens and encumbrances except as specified herein and except: Use and occupancy restrictions of public record which are generally applicable to properties in the immediate neighborhood or the sub-division in which the property is located, and publicly recorded easements for public utilities and any other easements which may be observed by an inspection of the property, and assessment for sewer and water benefits. ” (Italics added).

All of the above-mentioned deeds were properly recorded in the land records office of Howard County. An attorney, who was accepted by the court as an expert on title searching, testified that, in his opinion, the restrictive covenants contained in the 1958 deed from the Johnsons to the Klines bound the land of appellants and appellees. The real estate agent who sold appellants their house testified that Dr. Liu requested numerous structural changes be made to the interior of the house but that he never mentioned his intention to use the house as a professional office in addition to its use as a residence. The ¹⁸³ agent also stated that despite the changes the house still looked like a dwelling, architecturally.

Robert W. McColley, who along with his wife comprised one of the eleven couples who brought suit, testified that he had purchased his home in November 1971 and had moved in during June 1972 prior to appellants. Subsequently McColley spoke with Dr. Lui who told him that he intended “to open up his own office.” Due to a language problem McColley said he had no idea Dr. Liu intended to set up an office in his residence. With regard to the reason for appellees’ suit, McColley testified as follows: “Well, it’s the feeling that I have and also my wife’s that it does represent a parking problem, a safety hazard, that we and our neighbors have invested a considerable amount of money to reside on that street with the understanding that this was a strictly residential area, that there was not to be any commercialism, which I would say this represents with the signs in the front; the safety hazard, because it’s a deadend street and the children play out in the street and they’re all at various ages, the traffic problem which this would constitute.” Dr. Liu testified that he spoke with the real estate agent and Mr. Robinson about his plans to use part of his house as an office and that they voiced no disapproval. Liu also said he spoke with the mortgagee and the Howard County Zoning authorities regarding his office and they said that there was no problem.

He also spoke with a Dr. Reeves, a dentist in the neighborhood. Reeves had been practicing for some time from an office in his home. In that regard a stipulation was entered into between attorneys for all the parties and was read into the record: “It is hereby stipulated and agreed between counsel for the Plaintiffs and counsel for the Defendants, that if Francis Reeves were called to testify, Mr. Reeves would testify that in 1962 he contracted ¹⁸⁴ with Development Sales Corporation for the construction and purchase of a dwelling house at 9539 Westwood Drive, Ellicott City, which was to contain offices for the practice of dentistry. Mr. Reeves has resided at this address since the home was completed in 1963, and has regularly practiced dentistry at this address on Tuesdays and Thursdays only.

While Dr. Reeves does not maintain a principal office for dentistry elsewhere, he is the chief dentist at Spring Grove Hospital and the University of Maryland Hospital and the Children’s Hospital. It is also stipulated that the property of Dr. Reeves is one of those lots originally included in the property of Wesley L. Johnson and wife, to which the restrictive covenants in question apply, as well as, those of each of the Plaintiffs and the Defendants. Dr. Reeves’ office is identifiable by a sign outside the premises. “It is further stipulated that the telephone directory lists one phone number and address for Dr.' Reeves’ office and that is 9539 Westwood Drive.” (Italics added). According to Dr. Liu the dispute with his neighbors over the office arose some time in June 1973, shortly before the instant suit was filed.

He also stated that since that time he had spent over $9,000 on his office to bring the total cost to approximately $15,000. Liu finally added that he had given up his office in Baltimore City to move to Howard County and that at the time he had no office other than at his home. APPLICABILITY OF THE COVENANTS The threshold question presented by this appeal is whether the restrictive covenants in the 1953 deed from the Johnsons to the Klines apply to the parties. Appellants advance several arguments in support of their contention that the covenants in question do not apply.

In light of the stipulation entered into between appellants’ attorney and the attorney for the appellees in which all ¹⁸⁵ parties agreed that the restrictive covenants in question applied to their land we need not discuss all of the specific points raised by the appellants. We note, however, that the trial court’s conclusion that the covenants ran with the land and therefore applied to the appellants is well supported by the cases. Regarding the nature of the restrictive covenant, the Court of Appeals in Gnau v. Kinlein, 217 Md. 43 , 141 A. 2d 492 (1958) stated at 48: “Whether a restrictive covenant is personal to a grantee or a grantor, or to both, or binds their respective successors in title, and so the land by whomever owned from time to time, as well as whether a grantor intended to bind land retained by him, is a question of intention, which may be ascertained from the language of the conveyances alone or from that language together with other evidence of intent. Schlicht v. Wengert, 178 Md. 629 ; Club Manor v. Oheb Shalom Cong., 211 Md. 465, 475-476 ; Halle v. Newbold, 69 Md. 265 ; Turner v. Brocato, 206 Md. 336 ; Oak Lane Corporation v. Duke, 196 Md. 136 .

It is clear to us from the language of the 1953 deed that the Johnsons’ intent was to bind not only themselves and the Klines by the restrictive covenants imposed, but also all subsequent purchasers of the land or any part thereof. The language is susceptible of no other reasonable interpretation. The fact that the deed to appellants did not contain a reference to the covenants does not alter their effect. The 1953 deed containing the covenants was properly recorded and as such provided constructive notice to the appellants and therefore the covenants are binding against them.

Gnau v. Kinlein, supra at 49; Lowes v. Carter, 124 Md. 678, 685-86 , 93 A. 216 (1915). Appellant contended on oral argument that we should not accept the stipulation because the trial judge did not refer to ¹⁸⁶ it in his opinion, but relied on the deeds in evidence and on the title searcher’s opinion that the restrictions bound all of the property of the parties hereto. The argument is specious. 2 There is no indication in the record that the stipulation was rejected by the court. THE MEANING OF THE COVENANTS The restrictive covenant whose meaning concerns us here is found in the deed dated June 10, 1953 from the Johnsons to the Klines and reads as follows: “. . . and further subject, however, to and with the benefit of the following covenants, agreements, easements and restrictions, which it is hereby covenanted and agreed shall be binding upon the said developer, his heirs and assigns, and upon the said parties of the second part, their assigns, the survivor of them, his, or her, heirs and assigns, and upon all the land included in said tract hereby conveyed, that is to say: “(1) All the lots in said subdivision, as shown on said plat, or plats, except the block marked ‘Commercial, Subject to Applicable Zoning Regulations’, and heretofore reserved from the operation and effect of this deed and agreement, and which is designed for business or residential purposes, shall be known and described as residential lots and are so referred to hereinafter, and shall be used exclusively for private dwelling house purposes only and no structure shall be erected on said residential building lots other than a one-family dwelling and a one, or two, car garage for the sole use of the respective owners, or occupants, of the lots upon which such garages are erected.” (Italics added). ¹⁸⁷ Appellants argue that the covenant does not prohibit the use of part of their home as a doctor’s office so long as the outward appearance of the home remains the same and so long as “there is no laboratory, hospital, associate physicians, secretaries, nurses, technicians or some such facilities or assistance” on the premises.

In Osborne v. Talbot, 197 Md. 105 , 78 A. 2d 205 (1951), a chiropractor was enjoined by the lower court from “conducting or engaging in any business or profession” in his home because of a restrictive covenant similar to the one in the instant case. The facts disclosed that Osborne’s principal office was not in his home and that his practice at home was to be limited and incidental to his main office. The Court of Appeals reversed the decree granting the injunction holding that the meaning of “residential purposes only” was not so narrow as to preclude the “incidental” practice of chiropractic in a home. The Court added,