Estate of McIntyre ex rel. McIntyre v. Lionsridge 4 Homeowner's Ass'n

124 P.3d 860, 2005 Colo. App. LEXIS 671, 2005 WL 1038924
CourtColorado Court of Appeals
DecidedMay 5, 2005
DocketNo. 03CA2382
StatusPublished

This text of 124 P.3d 860 (Estate of McIntyre ex rel. McIntyre v. Lionsridge 4 Homeowner's Ass'n) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of McIntyre ex rel. McIntyre v. Lionsridge 4 Homeowner's Ass'n, 124 P.3d 860, 2005 Colo. App. LEXIS 671, 2005 WL 1038924 (Colo. Ct. App. 2005).

Opinion

CASEBOLT, J.

In this declaratory judgment action involving the interpretation of restrictive covenants on real property, plaintiffs, the Estate of W. Scott McIntyre and Victoria Ann McIntyre Baron, appeal the judgment entered in favor of defendants, Lionsridge #4 Homeowner’s Association, Nancy M. Peterson, Hidden Valley Enterprises Ltd., Thomas J. Hughes, Diane L. Hughes, Robert Snowden Smith, Donald P. Remey, Nancy W. Remey, Judith A. Kuller, Harold Kuller, Richard J. Karle, Ton-nie C. Karle, and Orrison Family Guardianship, in which the trial court construed the applicable covenants to preclude further subdivision of plaintiffs’ lot. We affirm.

Plaintiffs are the owners of Lot 11 in a residential housing development known as Lion’s Ridge, which is subject to restrictive and protective covenants. Defendants include the homeowner’s association and individual lot owners in the development.

The applicable Declaration of Protective Covenants has had, as relevant here, three versions. The first is the 1980 Declaration, the second is the 1985 Amended Declaration, and the third is the 1999 Amendment.

The 1980 version contained an express restriction against subdividing plaintiffs’ lot. The 1985 version did not contain the express restriction. While the 1985 version did not contain any express language either permitting or prohibiting subdivision of any lot, the 1999 Amendment expressly provided that no subdivision of any lot may occur.

Plaintiffs filed this action seeking a declaration that the 1985 version did not prohibit subdivision of the lot and that the 1999 Amendment was invalid. After a bench trial, the trial court concluded that the 1985 version restricted subdivision of plaintiffs’ lot and that the 1999 Amendment was valid because it did not take away any preexisting right to subdivide. This appeal followed.

Plaintiffs contend the trial court erred in determining that the 1985 Amended Declaration clearly and unambiguously prohibited subdivision of the lot and in concluding that the 1999 Amendment was valid. Specifically, plaintiffs contend that, because the 1985 version deleted the explicit restriction against subdivision found in the 1980 Declaration, subdivision was no longer prohibited. We disagree.

Construction of a covenant is a question of law that requires de novo review. Buick v. Highland Meadow Estates at Castle Peak Ranch, Inc., 21 P.3d 860 (Colo.2001).

When interpreting a restrictive covenant, courts must “follow the dictates of plain English.” Double D Manor, Inc. v. Evergreen Meadows Homeowners’ Ass’n, 773 P.2d 1046, 1048 (Colo.1989)(quoting D.C. Burns Realty & Trust Co. v. Mack, 168 Colo. 1, 4, 450 P.2d 75, 76 (1969)). Courts will enforce as written a covenant that is clear on its face. Rossman v. Seasons at Tiara Rado Assocs., 943 P.2d 34 (Colo.App.1996).

Here, the 1980 Declaration defined “lot” as “[a] Lot within Lion’s Ridge Subdivision Filing No. 4 including the appurtenant interest thereto, if any, in and to the Road.” It defined “single unit residential lot” as “[a] Lot which can be used solely for residential purposes and upon which not more than one building, containing not more than one dwelling unit, and containing not more than one garage may be constructed.” It defined “single owner duplex unit residential lot” as:

A Lot which can be used solely for residential purposes and upon which not more than one building containing not more than two dwelling units, and not more than one garage for each dwelling unit, may be constructed, provided that such Lot and dwelling units thereon may not be further subdivided and the dwelling units thereon may not be separately owned.

Plaintiffs’ lot was originally a single owner duplex unit residential lot.

The 1985 Amended Declaration deleted the distinction between single owner duplex residential lots and single unit residential lots. It designated all lots as “residential lots,” and defined that term as:

[862]*862A Lot which can be used for residential purposes and upon which Lot not more than one building, containing not more than one dwelling unit and not more than one employee unit ... and containing not more than one garage for each unit, may be constructed.

We are not persuaded by plaintiffs’ contentions that the elimination of the explicit restriction on subdivision in the 1985 Amended Declaration means the restriction on subdividing was altogether removed and that the “one building per lot” clause restricts only the number of buildings on a lot, not the number of lots in the development. On the contrary, in light of the definition of “lot” and the removal of single owner duplex units from the declaration, the express restriction on subdivision can be fairly construed to be superfluous and therefore unnecessary.

It is clear that the word “lot,” as used in the 1985 Amended Declaration, refers to the units of property within the subdivision originally conveyed by the developer. “Lot” is defined as “[a] Lot within Lion’s Ridge Subdivision Filing No. 4,” which as originally platted consisted of seventeen lots. Thus, it is also clear that the paragraph permitting construction of not more than one building containing not more than one dwelling unit upon a residential lot refers to a lot as any of the original units of land in the subdivision as originally platted by the developer.

Other jurisdictions, considering similar language, have concluded that no further subdivision of a lot was permitted. See Belle Terre Ass’n v. Brosch, 216 So.2d 462 (Fla.Dist.Ct.App.1968); Belleview Constr. Co. v. Rugby Hall Cmty. Ass’n, 321 Md. 152, 582 A.2d 493 (1990); Cadbury v. Bradshaw, 43 Or.App. 33, 602 P.2d 289 (1979).

In Belleview Construction Co., supra, the restriction provided that “only one single family dwelling for private residence purposes shall be erected on each lot.” The court concluded that “each lot” meant each lot as conveyed by the developer, and not each lot that thereafter might be created by any resubdivision. The court reasoned that “it almost defies common sense to suggest that although ‘lot’ obviously means a lot as conveyed by the developer virtually everywhere it is used in the deed of restrictions, it should somehow be afforded a different meaning ... when it is used in this restriction [allowing only one single family dwelling on each lot].” Belleview Constr. Co. v. Rugby Hall Cmty. Ass’n, supra, 321 Md. at 159, 582 A.2d at 496.

In Belle Terre Ass’n, supra, the restriction provided that “only one dwelling house ...

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Related

Rossman v. Seasons at Tiara Rado Associates
943 P.2d 34 (Colorado Court of Appeals, 1996)
Ingle v. Stubbins
82 S.E.2d 388 (Supreme Court of North Carolina, 1954)
Double D Manor, Inc. v. Evergreen Meadows Homeowners' Ass'n
773 P.2d 1046 (Supreme Court of Colorado, 1989)
Callaham v. Arenson
80 S.E.2d 619 (Supreme Court of North Carolina, 1954)
Cadbury v. Bradshaw
602 P.2d 289 (Court of Appeals of Oregon, 1979)
SCHOOLCRAFT CIVIC ASSN. v. Diloreto
62 N.W.2d 657 (Michigan Supreme Court, 1954)
J.P. Building Enterprises, Inc. v. Timberwood Development Co.
718 S.W.2d 841 (Court of Appeals of Texas, 1986)
Belleview Construction Co. v. Rugby Hall Community Ass'n
582 A.2d 493 (Court of Appeals of Maryland, 1990)
Turnley v. Garfinkel
362 S.W.2d 921 (Tennessee Supreme Court, 1962)
Buick v. Highland Meadow Estates at Castle Peak Ranch, Inc.
21 P.3d 860 (Supreme Court of Colorado, 2001)
Belle Terre Ass'n v. Brosch
216 So. 2d 462 (District Court of Appeal of Florida, 1968)
D. C. Burns Realty & Trust Co. v. Mack
450 P.2d 75 (Supreme Court of Colorado, 1969)

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124 P.3d 860, 2005 Colo. App. LEXIS 671, 2005 WL 1038924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-mcintyre-ex-rel-mcintyre-v-lionsridge-4-homeowners-assn-coloctapp-2005.