South Kaywood Community Ass'n v. Long

JAMES P. SALMON (Retired, Specially Assigned), J. This case concerns a restrictive covenant placed in the land records in 1961 that governs lots in the South Kaywood subdivision which is located in Salisbury, Maryland. The principal issue to be decided is whether a restrictive covenant that governs the subdivision and limits the use of lots to “single family residences” but does not define the word “fami ¹³⁷ ly,” prohibits an owner of a lot in that subdivision from renting the property to persons who are not related by blood, marriage, or adoption. Although no Maryland appellate court has considered that issue, courts in our sister jurisdictions that decided cases near the time the covenant at issue was drafted, or earlier, have done so but have reached divergent results. See, for example, Marino v. Mayor & Council, 77 N.J.Super. 587 , 187 A.2d 217, 220-21 (Law Div.1963) (an unrelated man and woman living together may be a “family”); Simons, et al. v. Work of God Corporation, 36 Ill.App.2d 199 , 183 N.E.2d 729, 731 (1962) (Restrictive covenant limiting use of property to one housekeeping unit by a single family interpreted to mean that the property could be used only by persons related by blood or marriage (plus domestic servants)); Stafford v. Village of Sands Point, 200 Misc. 57 , 102 N.Y.S.2d 910, 913 (N.Y.Sup.Ct.1951) (the “family” consists of those living together in one house, under the same management, with a common goal); G.M.G. Realty Co. v. Spring, 191 Misc. 334 , 77 N.Y.S.2d 732, 734 (N.Y. City Mun.Ct.1948) (the “family” consists only of a blood related father, mother, and children); Liberty Nat’l Bank of Chi. v. Zimmerman, 333 Ill.App. 94 , 77 N.E.2d 49, 52 (1947) (relying upon Webster’s Dictionary, which defined family as “the collective body of persons who live in one house and under one head or manager”); Boston-Edison Protective Association v. The Paulist Fathers, Inc., 306 Mich. 253 , 10 N.W.2d 847, 848 (1943) (court rejected the plaintiffs’ invitation to define family as persons related by blood or marriage and went on to rule that a group of unrelated Roman Catholic Priests could reside in a neighborhood limited to single family dwelling houses without violating the restrictive covenant); Robbins v. Bangor Ry. & Elec.

Co., 100 Me. 496 , 62 A. 136, 140 (1905) (quoting definition of family found in Webster’s Dictionary: “persons collectively who live together in a house or under one head or manager; a household including parents, children, and servants and as the case may be boarders”); Oystead v. Shed, 13 Mass. 520, 523 (1816) (Boarders and lodgers are a “family”). Cases decided since 1963 have also reached divergent results when considering the meaning of ¹³⁸ the term “single family.” See Anno. 71 A.L.R.3d 693 , “What Constitutes a ‘Family’ Within Meaning of Zoning Regulations or Restrictive Covenant” by James L. Rigelhaupt, Jr., (1976) (hereinafter Rigelhaupt). In the case sub judice, the Circuit Court for Wicomico County granted the plaintiffs’ request for a declaratory judgment and ruled, inter alia, that the term “single family” as used in a restrictive covenant, did not restrict use of the property to persons related by blood, marriage, or adoption. The appellant in this case, South Kaywood Community Association (hereinafter “the Association”), contends that the Circuit Court erred in its construction of the restrictive covenant.

For the reasons set forth below, we shall affirm the judgment of the Circuit Court insofar as it declared that the “single family” restriction did not prevent the appellees from renting houses they owned to persons not related by blood, marriage, or adoption. I. The appellees, Rodney Long and his wife, Melinda B. Long, purchased two homes in the South Kaywood subdivision in Salisbury, Maryland in 2006. The houses are both located on South Kaywood Drive and as a consequence of purchasing these houses, the Longs became members of the Association. Presently, the property located at 1704 South Kaywood Drive is leased to a married couple with two children.

But, the home located at 1602 South Kaywood Drive is leased to three female undergraduate students who attend Salisbury University. Those students are not related to each other by blood, marriage, or adoption. Upon learning of the familial status of the three students, the appellant, an unincorporated community association, sent letters to the Longs in which it asserted that rental to unrelated occupants constituted a violation of the covenants that governed all lot owners in the South Kaywood subdivision. The appellant relied upon the first paragraph [Item I] of a covenant that was filed in the Land Records of Wicomico County on February 24,1961.

Item (I) states: ¹³⁹ That not more than one private dwelling house or residence and a garage solely for the use of the owner or occupier thereof shall be erected or placed upon any one of the lots conveyed herein, and such house or residence shall never be used or occupied for a,ny purpose except for that of a private residence exclusively, nor shall any part or portion thereof ever be used or occupied except solely as a single family residence; nor shall any lot or any part thereof ever be used or occupied for trade, business or professional purposes of any kind whatsoever, nor shall any signs or other displays of any commercial nature be erected. (Emphasis supplied.) The Longs disagreed with the appellant’s interpretation of the covenant and as a result, filed a declaratory judgment action in the Circuit Court for Wicomico County asking the court to declare that Item I of the covenant did “not require all individuals residing on [their] property within the Kaywood subdivision to be related----” The Association filed a timely answer to the complaint for declaratory judgment in which it asked, insofar as here pertinent, that the court declare “that Item I of the covenants ... does mean that homes are to be used or occupied solely as single a family residents .... ” [sic] 1 No counter-claim was filed by the Association. Both sides filed motions for summary judgment in their favor, but the motions were not decided. Instead, an evidentiary hearing was held on April 22, 2010.

Mr. Long was the sole witness called on behalf of the appellees at the hearing. The appellant called several witnesses who were all members of the Association. ¹⁴⁰ II. Summary of evidence produced at trial. A. Testimony of Mr. Long.

In his testimony, Mr. Long admitted that the three college students who leased the property located at 1602 South Kay-wood Drive were not related. The lease with the students was for one-year. Under the lease, each of the students were individually liable for damages that might be done to the property during the term of the lease and the leasees were also collectively responsible for cleaning and maintenance of the interior of the house. During cross-examination, Mr. Long summed up his testimony in regards to his tenants’ living arrangements as follows: “They maintain the property.

They share equal responsibility for the property. They share any damages equally in the property. They eat their meals together in this property.” Mr. Long added that although the lease would expire in July, 2010, he believed that the students intended to renew their lease. During direct and cross-examination, Mr. Long was questioned in regard to the zoning status of the property.

He testified that the properties that he and his wife own on South Kaywood Drive are in the R-l District, which is reserved for single family residences. The definition of “family” that governs property in the R-l District in Wicomico County, is set forth in the Wicomico Zoning Code as follows: FAMILY Means either (a) one person, or two unrelated persons and the children of either of them, or (b) two or more persons related by blood or marriage, or (c) a group of not more than four persons not necessarily related by blood or marriage. In any case, the group must be living together as a single housekeeping unit. In all cases, foster children placed by an agency licensed to operate in Maryland housed on the premises are considered as members of the family. ¹⁴¹ Wicomico County Zoning Code, Section 225-25 B.

(emphasis added). As can be seen, three unrelated college students living together in a residence would not violate the provisions governing property in the R-l District, so long as the students lived together as a “single housekeeping unit.” 2 Mr. Long was also cross-examined about provisions in Sections 225-46(e)(2) of the Wicomico County Zoning Code, which governs property located in an overlay district. Neither of the properties owned by the Longs were in the overlay district, but if they had been, a different definition of “family” would apply. Section 225-46(e)(2) reads: “for any use that includes the term’ family,’ the following definition should apply; one person or two or more persons related by blood or marriage, or a group of not more than two persons not necessarily related by blood or marriage, in any case, living together as a single housekeeping unit.” 3 B. Evidence Introduced by the Association.

The Association, although it steadfastly maintained in the trial court that the covenant in question was unambiguous, nevertheless, asked several of the witnesses it called to give their views as to what the covenant meant. Barry Beauchamp had lived in the South Kaywood Community for five years and, at the time of the trial, was the President of the Association. He was asked what, in his view, constituted a “family” as that term was used in the covenant. Mr. Beauchamp defined a family as “husband and wife, chil ¹⁴² dren.” He then added that a “family” could also include a “boyfriend and girlfriend that ... [are] living as a family.” He also stated that he would consider it a family if the occupants were parents who had raised children but the children had left the home.

Clinton Broadway, Jr., the Vice President of the Association, testified that he had lived on South Kaywood Drive for 20 years. He described the area as a “stable neighborhood” located approximately three and one-half miles from Salisbury University. Steward Haenel had lived in the South Kaywood subdivision since December of 1974. He defined a “single family residence” as “father, mother, children, and descendants of a common progenitor.” He testified that in his 36 years in the neighborhood, he had not known of any other homeowner who had not “lived as a single family in their homes.” Lee Edward Tate, III, testified that he had lived in the South Kaywood neighborhood since 1991.

The three college students who rented the Long’s property lived near his home. He opined that the students were not using the property as a “single family household.” He interpreted the words “single family” as meaning “two persons being of opposite sex, of course, with children [or] planning to be married, planning to use the facility for a family.” He then added that he believed that if a same sex couple purchased a home and had children, they too would be a single family but a group of college students would not—under his conception of what the common understanding was of the meaning of the phrase “single family.” He clarified his definition by saying that a “same sex couple” would constitute a family only if they “were there truly as a couple.” Also, according to Mr. Tate, the dwelling would be used as a single family dwelling if a couple had “adopted someone or if they had taken in a foster child” so long as there were two adult individuals engaged in child rearing. He further explained that in his opinion, “children don’t necessarily have to be blood related, but they can be adopted or maybe it’s the sister-in-law’s child or something happened and somebody died and they inherited it, those ¹⁴³ children. That’s a family to me.” Also included in his definition was a same sex couple who had taken into their care a foster child.

After giving this rather flexible definition of the meaning of “single family,” he said that: “the whole linchpin to any definition” of what constitutes a family is that the persons living together have “a long-term commitment” and are “all operating as a family to raise these kids that are under 18 to become adults.” Mr. Tate concluded his testimony by conceding, in an answer to a question by the court, that it was true that “lots of people have lots of definitions about family ...” and, therefore, the definition is “somewhat subjective.” III. Trial Judge’s decision. The trial judge concluded that the language set forth in Item I of the covenant did not “require residents of property within the Kaywood subdivision to be related by blood, marriage, or adoption.” The court went on to say that the occupation of 1602 South Kaywood subdivision by three unrelated college students conforms to the provisions of the covenants and restrictions and is consistent with the applicable Wicomico County Zoning Regulations. The trial Judge also found: that the language [in] paragraph 1 of the covenant, is ambiguous with respect to the term ‘single family residence’ in modern day society.

The ambiguity is amply supported by that divergent interpretation placed on that provision by the parties. The judge added that the ambiguity was not resolved by consideration of extrinsic evidence.

IV

Discussion. At the outset, it is important to focus on what the Longs asked the circuit court to declare, i.e., that the covenant did ¹⁴⁴ not restrict the use of the property to persons related by blood, marriage, or adoption. It is obvious that the reason the request for relief was so limited was because the Association had, prior to suit, only claimed a violation because the three coeds were not related by blood, marriage, or adoption. That was the justiciable controversy presented to the trial court.

And, as already mentioned, the Court did resolve that controversy. The Court went further, however, and declared: 1) that three unrelated college students living together in the subdivision did not violate the covenant, and 2) that use of the premises by the coeds did not violate the zoning ordinance. In the complaint for declaratory judgment, the court was not asked to make a declaration as to those issues. We shall hold, therefore, that the court erred in entering a declaratory judgment that was not requested in the plaintiffs complaint.

In Lowden v. Bosley, 395 Md. 58, 65-67 , 909 A.2d 261 (2006), the rules that govern our analysis of the covenant at issue were set forth, viz: This Court on numerous occasions has set forth the principles governing the interpretation and application of restrictive covenants. See, e.g., Miller v. Bay City Property Owners Ass’n, 393 Md. 620 , 903 A.2d 938 (2006); Roper v. Camuso, 376 Md. 240 , 829 A.2d 589 (2003); County Commissioners v. St. Charles, 366 Md. 426 , 784 A.2d 545 (2001); Belleview v. Rugby Hall, 321 Md. 152, 157 , 582 A.2d 493, 495 (1990); Turner v. Brocato, 206 Md. 336 , 111 A.2d 855 (1955); Himmel v. Hendler, 161 Md. 181 , 155 A. 316 (1931); Maryland Coal Co. v. Cumberland and Penn. R.R., 41 Md. 343 (1875); Thruston v. Minke, 32 Md. 487 (1870). As Judge Cathell for the Court emphasized in Miller v. Bay City Property Owners Ass’n, supra, where the language of an instrument containing a restrictive covenant is clear with regard to the controversy before the court, there is no occasion to consider extrinsic evidence concerning the intent reflected in the restriction.

The Court in Miller explained ( 393 Md. at 637 , 903 A.2d at 948 , quoting Mary ¹⁴⁵ land Coal Co. v. Cumberland and Penn. R.R., supra, 41 Md. at 352 ): “In determining the intent of the parties we must begin with the actual language used in the [instrument]: ‘If the intention of the parties is plainly manifest upon the face of the instrument, there is no room for interpretation and there is nothing left for the courts but to carry into effect the intention of the parties so ascertained, unless prevented from doing so by public policy or some established principle of law.’ ” Moreover, a lack of ambiguity in the application of the restrictive covenant may be gleaned or reinforced by other language in the instrument. Miller, 393 Md. at 638 , 903 A.2d at 948 (“It is also useful to look at the language used in the other sections of the ... deed”). It is only where the restrictive covenant is ambiguous that courts venture beyond the text of the instrument and consider extrinsic evidence.

Miller, 393 Md. at 634-637 , 903 A.2d at 946-948 ; County Commissioners v. St. Charles, supra, 366 Md. at 445-448 , 784 A.2d at 557 . In construing ambiguous restrictive covenants, this Court at one time held that “a strict construction standard was applicable to promote the free alienability of land,” that “the courts were to hold the restriction to its narrowest limits,” and that the ambiguity should be resolved in favor of the unrestricted use of the property. St. Charles, 366 Md. at 445 -446 and n. 17, 784 A.2d at 556 -557 and n. 17. More recently, however, “Maryland courts no longer apply a pure strict interpretation or construction, but apply rather, a reasonably strict construction when construing covenants.” St. Charles, 366 Md. at 447 , 784 A.2d at 557 .

The “reasonably strict construction” principle was explained in Belleview v. Rugby Hall, supra, 321 Md. at 157-158 , 582 A.2d at 495 : “If the meaning of the instrument is not clear from its terms, ‘the circumstances surrounding the execution of the instrument should be considered in arriving at the intention ¹⁴⁶ of the parties, and the apparent meaning and object of their stipulations should be gathered from all possible sources.’ ” “If an ambiguity is present, and if that ambiguity is not clearly resolved by resort to extrinsic evidence, the general rule in favor of the unrestricted use of property will prevail and the ambiguity in a restriction will be resolved against the party seeking its enforcement.” Id. at 65-67, 909 A.2d 261 . (Emphasis added). See also 600 N. Frederick v. Burlington, 419 Md. 413, 441 , 19 A.3d 837 (2011) ([ajpplying properly a reasonably strict construction to interpretation of restrictive covenants means that “if there is ambiguity in [a restrictive covenant’s] meaning, any doubt should be resolved in favor of the unrestricted use of the property, if it reasonably can be done”) (quoting Baltimore Butchers Abattoir & Live Stock Co., Inc. v. Union Rendering Co., 179 Md. 117, 123 , 17 A.2d 130 (1941)). The covenant here at issue was filed in the land records in February, 1961 and, presumably, was written shortly before that date.

No witness testified as to what the drafter of the covenant meant by the term “single family.” In fact, as far as we can discern, no witness called by the Association would have any way of knowing what the drafter intended because none of them lived in the South Kaywood area until long after the covenant had been filed. Moreover, the extrinsic evidence introduced by the Association concerning the meaning of the term “single family” is not useful in determining what the drafter intended. In every instance, witnesses called by the Association simply gave their own subjective interpretation as to what the phrase meant. Those interpretations were far from consistent.

Moreover, we can find no language in other paragraphs of the restrictive covenants that provides guidance as to what the drafter of the covenant intended. In Armstrong v. Baltimore, 410 Md. 426 , 979 A.2d 98 (2009), the Court of Appeals was called upon to determine whether the Baltimore City Board of Municipal and Zoning Appeals (“the Board”) misconstrued the term “single housekeeping ¹⁴⁷ unit.” as that term was used in the Baltimore City Zoning Code. Id. at 453 , 979 A.2d 98 . The issue arose because a builder received a permit from the City to build an apartment building consisting of twenty-six dwelling units.

Id. at 429 , 979 A.2d 98 . The Baltimore Zoning Code provided that a dwelling unit may be occupied by no more than one family. Id. “Family” was defined as “four unrelated individuals (and no more) who live together” if they form a “single housekeeping unit.” Id. The Zoning Code did not define the term “single housekeeping unit.” Id.

In Armstrong , a residential building had been constructed that consisted of twenty-six four-bedroom apartments. The owner of the building, Cresmont Properties, Inc. [Cresmont], intended to rent each apartment unit to four unrelated individuals. Id. Each apartment unit consisted of “four bedrooms and a common area and a bathroom and kitchen facilities.” Id.

Although there were twenty-six four-bedroom suites, petitioners, a group of neighborhood residents, contended that the suites contained four dwelling units each. Id. at 433-34 , 979 A.2d 98 . Cresmont disagreed and contended: that each of the twenty-six suites satisfied the Code definition of a “dwelling unit.” A “dwelling unit,” Cresmont observed, is a rental unit that contains a bathroom, kitchen facilities, and is occupied by a “family.” Cresmont proffered that the tenants of each suite would constitute a “family,” despite having separate leases, because they would be “living together as a single housekeeping unit,” as required by the Code definition of “family.” Id. at 434 , 979 A.2d 98 . (Footnotes omitted).

The Armstrong Court held that substantial evidence existed to support the Board’s finding that the building permit was appropriately issued to Cresmont because the building was going to accommodate 26 dwelling units. 410 Md. at 453 , 979 A.2d 98 . The decision in Armstrong , although relied upon by both parties below, is not here apposite because in Armstrong the Court made no attempt to define the term “single family.” ¹⁴⁸ The Court did, however, provide some legal history, that has relevance, viz: In re Appeal of Miller, 511 Pa. 631 , 515 A.2d 904 , 907 n. 3 (1986) (citing EDWARD N. BASSETT, ZONING 189 (1940 ed.)) The court offered the following epistemological lesson on the term’s [“single housekeeping unit’s”] history: Alfred Bettman in a law review article written in 1924 stated the proposition that “promotion of the single family home ... is deemed good public policy in America.” Bettman, Constitutionality of Zoning, 37 Harv. L.Rev. 834, 839-40 (1924). From that point “zoning spread swiftly, particularly in suburban communities.” J.R. Richards, Zoning For Direct Social Control, 5 Duke Law Journal, 761, 767 (1982).

At an early stage of that development the legitimacy of exclusive single-family districts was settled. However, the question that emerged was how, if at all, a given ordinance should define the term “family.” Initially, a significant number of ordinances resolved that issue by leaving the word undefined. See, e.g. Baltimore, Md.Code art. 49 § 1 (1928); Birmingham, Ala., General Code Ordinance 1101-C, art.

I, § 1 (1930). The consequence of that approach was to leave the resolution of the term “single family” to the courts. See, e.g., Brady v. Superior Court, 200 Cal.App.2d 69, 77-82 , 19 Cal.Rptr. 242, 247-49 (1962); Region 10 Client Management, Inc. v. Town of Hampstead, 120 N.H. 885, 887 , 424 A.2d 207, 208-09 (1980); Carroll v. Washington Township Zoning Comm’n, 63 Ohio St.2d 249, 251 , 408 N.E.2d 191, 193 (1980). The weakness of that strategy was the uncertainty it created and also the attendant cost of litigation.

As the dissatisfaction with reliance solely upon judicial interpretation for the definition of the term “family” became increasingly apparent, the drafters of those ordinances attempted to legislatively set forth a more precise meaning with the ordinances. One of the early formulations used to define “family” within the terms of those provisions was that of a “single housekeeping unit.” See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365 , 47 S.Ct. 114 , 71 L.Ed. ¹⁴⁹ 303 (1926). The ordinance in effect, in the instant Township prior to the 1978 amendment, used the “housekeeping unit” formulation. Regrettably, this attempt to define “family” did not supply the degree of clarity it was intended to provide.

A review of the cases throughout the country indicates that the change served only to focus the litigation upon a determination as to the meaning of a “housekeeping unit.” In those cases interpreting zoning ordinances wherein the “family” limitation had been defined as a “single housekeeping unit,” many extended family groups were deemed to fall within that category. The use of this test was viewed as extending beyond the occupancy by a one-family unit to a determination as to whether it was a one-housekeeping unit. See Neptune Park Ass’n v. Steinberg, 138 Conn. 357 , 84 A.2d 687 (1951). The focus was on whether the unit functioned as a, family unit, rather than on the respective relationships that existed between the members of tibe unit.

See, e.g., City of Syracuse v. Snow, 123 Misc. 568 , 205 N.Y.S. 785 (Sup.Ct.1924) (“single housekeeping unit” held not to exclude a college sorority); Robertson v. Western Baptist Hospital, 267 S.W.2d 395 (Ct. of Appeals of Ky.1954) (use of a residence as a home for about 20 nurses constituted a permitted use under a “single housekeeping unit” test); Boston-Edison Protective Ass’n v. Paulist Fathers, 306 Mich. 253 , 10 N.W.2d 847 (1943), 306 Mich. 253 , 10 N.W.2d 847 , 148 A.L.R. 364 (approved the use of a dwelling house in a highly restricted district as a residence for Roman Catholic priests). Miller, 515 A.2d at 907 . Id. at 449-50, 979 A.2d 98 . What was said in the excerpts just quoted regarding nonuniform judicial interpretations of the phrase “single family” when that term is undefined but used in an ordinance is equally true when the term “single family” is undefined and used in a restrictive covenant.

See Rigelhaupt, supra, 71 A.L.R.3d at 699-700: The term “family” is a deceptively simple one. Webster’s Third New International Dictionary gives more than a ¹⁵⁰ quarter of a column of definitional material, grouped under seven major headings. In its most common connotation, the term implies a biological relationship or some other relationship, such as marriage or adoption, sanctioned by law and given the same or similar legal consequences as the biological relationship. In this restricted sense, the term may, for purposes of this discussion, be subdivided into the “nuclear family,” consisting only of parents and their children, and the “extended family,” consisting of the entire group of persons enjoying a biological or legal family relationship, including such collateral relationships as grandparents and grandchildren, uncles, aunts, nieces, and the like.

The sense of the term “family” has, however, often been extended to include others, such as servants, living with a biologically or legally related group, and the term may also be used in a sense equivalent to “household,” as including any group which lives together under a common head and uses common facilities. Id. Some cases, in determining whether the term “single family” is ambiguous when used in a restrictive covenant, have looked to the definition of that term as used in zoning ordinances as some indication of what the term logically might mean. Newman v. Wittmer, 277 Mont. 1, 917 P.2d 926, 930 (1996) (collecting cases); Turner v. United Cerebral Palsy Asso., 772 P.2d 628, 630 (Colorado Court of Appeals, 1988) (“While the zoning statute has no direct applicability to private covenants, it is some indication of the type of groups that might logically, as a matter of public policy, be included within the concept of a single family.”) Hill v. The Community of Damien of Molokai, 121 N.M. 353 , 911 P.2d 861, 867 (1996) (same).

In Hill, supra, the New Mexico Supreme Court was called upon to interpret a covenant that read: No lot shall ever be used for any purpose other than single family residence purposes. No dwelling house located ¹⁵¹ thereon shall ever be used for other than single family residence purposes, nor shall any outbuildings or structure located thereon be used in a manner other than incidental to such family residence purposes. The erection or maintenance or use of any building, or the use of any lot for other purposes, including, but not restricted to such examples as stores, shops, flats, duplex houses, apartment houses, rooming houses, tourist courts, schools, churches, hospitals, and filling stations is hereby expressly prohibited. 911 P.2d at 865 . (Emphasis added).

The issue arose in Hill because a lot owner was using his property for a group home for four unrelated individuals who suffered from AIDS and needed some degree of home nursing care. Id. In Hill , the trial court ruled that the use of the