Pollack v. Bart

¹⁷⁴ Sobeloff, C. J., delivered the opinion of the Court. The sellers and the buyer of a parcel of land are here engaged in a joint effort to litigate out of existence certain restrictive covenants touching the land. The action takes the form of a bill for specific performance of a contract for the sale of a lot on Liberty Heights Avenue and Ocala Avenue in Baltimore City. The only parties are the owners and the purchaser, both of whom are interested in having the restrictions nullified.

Owners of the neighboring property for whose benefit the restrictions were imposed are not before the court. The parties stipulated ‘the facts below, and submitted the case without oral argument in this court. This is in no sense an adversary proceeding. The stipulation asserts that deeds, extracts from which are therein quoted, contain certain restrictions common to this lot and to five others, all located in the block on the south side of Ocala Avenue running east from Liberty Heights Avenue toward Reisterstown Road.

Restrictions incorporated in these deeds require certain minimum setbacks, forbit the erection of “more than one house or dwelling” on each lot, and forbid row houses. Facts are set forth designed to show alleged violations by some, not all, of the neighbors in this block by converting their houses into two or three family apartments. Whether this constitutes a violation was not argued but assumed, without - anyone being present below or here to question the assumption. The setback provisions are not alleged to have been violated, nor have the prohibitions against row houses been breached.

Other facts are set forth showing that in the general neighborhood, even directly across the street, row houses have been built. It is maintained by the sellers, unopposed by the buyer, that these, charges warrant a .decree declaring all the restrictions inoperative, opening the way to the construction of row houses on the lot which is the subject of the contract. Hence, the sellers argue, specific performance should be granted. The ¹⁷⁵ purchaser, while formally raising the question as to the state of the restrictive covenants, in a two-paragraph brief, merely says that he is prepared to buy if the court declares the title free from restrictions.

Obviously, sellers and purchaser understand that the latter wishes to buy the land for row houses, and specific performance is not to be granted unless the restrictions are declared inoperative. Upon the submission made to it, the Circuit Court for Baltimore City declined to grant the relief prayed and dismissed the bill. The opinion declared that as there was at least one owner in the block who had not waived the restrictions, relief must be denied. The opinion added that, notwithstanding significant changes in the neighborhood, it is beyond the court’s “power to vary or change the uses that seem definitely settled upon the land by prior deeds.” It is not necessary — indeed it is not desirable and may not be proper on this record — to decide whether or not any of the owners of property in this block of Ocala Avenue have violated the restrictions which appear to have been set up for the reciprocal advantage of the lot owners in that block.

We agree with the Chancellor that proof of violations of some of the restrictions by some of the owners on the south side of the 2500 block Ocala Avenue would not necessarily result in a waiver or surrender, thus vitiating the complementary restrictions on the appellants’ property. We do not agree, however, that decisions in restrictive covenant cases turn solely on the question of such waiver or surrender. Nor, in deciding whether there is any vitality left in a restrictive covenant is the court limited to a consideration of changes in the immediate block or subdvision where mutual covenants were imposed. The court may look to developments in a wider area to