by Tom Schild
A covenant allowing only one dwelling to be constructed on each lot in a Baltimore County community of over 600 homes is not waived by allowing erection of other structures including pool houses, gazebos, guest houses, and sheds, according to a recent ruling of the Maryland Court of Appeals–the highest state appellate court.
At issue in Shader v. Hampton Improvement Association, Inc. was whether a “one dwelling” covenant prohibited construction of a house on each of two subdivided portions of the original lot as it existed when the covenant was first created in 1931. Although the appeals court concluded there had been a waiver of the portion of the covenant which prohibited buildings other than “private dwelling houses”, there had been no waiver of the covenant which prohibited “no more than one dwelling” on each lot.
Explaining that each clause of the covenant is severable and independent of the other restrictions, the Maryland Court of Appeals agreed with the trial court and intermediate appeals court that waiver of one clause did not constitute a waiver of other covenant restrictions. Therefore, the “one dwelling” covenant remained enforceable to ensure the residential character of the neighborhood and a house was not allowed on each subdivided portion of the original lot.
POSTED BY: Thomas Schild Law Group, LLC
by Tom Schild
A restrictive covenant which limits use of lots to “single family residences”–but does not define the term “family”–is ambiguous. Therefore, it is not enforceable to prevent renting a house to persons not related by blood, marriage or adoption, according a recent decision of the Maryland Court of Special Appeals in South Kaywood Community Association v. Long.
A Wicomico County homeowners association contended that the restriction requiring use and occupancy as a “single family” residence prevented lease of a house to 3 unrelated student who attend Salisbury University.
The appeals court noted that Maryland courts apply a “reasonably strict construction” when interpreting covenants so that if there is ambiguity in meaning, any doubt should favor the unrestricted use of the property. In discerning the intent of the drafter in using the term “single family”, the court looked for but found no guidance in other provisions of the South Kaywood covenants. Observing that no Maryland appellate court has considered the meaning of a “single family” covenant, it also considered court decisions from other states decided near the time the 1961 South Kaywood restriction was drafted by found no clear covenant.
In concluding that the term “single family” is ambiguous, the Court noted that the term as used in zoning ordinances is often defined to include a specified number of unrelated persons living as a single housekeeping unit. It also noted that the great majority of courts in other states which have construed the term in zoning ordinances or restrictive covenants since the South Kaywood restriction was imposed have concluded that the term is ambiguous and does not necessarily restrict use of property to persons related by blood, marriage or adoption.
Therefore, the “single family” covenant restriction did not prevent occupancy by 3 unrelated college students.