Larkin v. McGeehan

28 Pa. D. & C.3d 32, 1983 Pa. Dist. & Cnty. Dec. LEXIS 229
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedOctober 20, 1983
Docketno. 83-C-1891
StatusPublished

This text of 28 Pa. D. & C.3d 32 (Larkin v. McGeehan) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Larkin v. McGeehan, 28 Pa. D. & C.3d 32, 1983 Pa. Dist. & Cnty. Dec. LEXIS 229 (Pa. Super. Ct. 1983).

Opinion

DIEFENDERFER, ].,

This case comes before the court as a declaratory judgment proceeding which was commenced by the parties upon stipulated facts by the filing of an agreement for an amicable action. The issue to be determined is whether defendants’ proposed construction of a two-building, ten-unit1 condominium would violate a deed restriction which permits the erection of . . only residences ... on lots only having a frontage on either streets or avenues of not less than fifty (50) feet.”

Plaintiffs, as seller, and defendants, as purchaser, entered into an agreement of sale for a parcel of land located in the City of Bethlehem, Lehigh County. The lot has a frontage of 247 feet on Thirteenth Avenue and frontage of 231 feet on Calypso Avenue. This parcel is subject to the following deed restriction dating from 1911:

Subject, however, to the condition or reservation that the said Grantees, their heirs, executors, administrators, or assigns may erect or cause to be erected on or within the described premises, only residences equipped with all modern improvements and on lots only having a frontage on either streets or avenues of not less than fifty (50) feet and shall in no event or under any contingency erect or cause to be erected any budding or buildings whatsoever [34]*34within twenty-five (25) feet of the front of the 13th and Calypso Avenue boundary lines of these premises, or any street or avenue that may be laid out through the within described premises including proposed extension of ‘Parkway’ (now Prospect Avenue).2

Defendants intend, upon purchase of the real estate, to construct a ten-unit condominium thereon. Plaintiffs claim that this construction will not violate the deed restriction; defendants contend that the construction will violate the fifty feet frontage requirement of the above restriction. The agreement of sale between the parties is contingent upon the elimination of the deed restriction. For the reasons which follow, we hold that the proposed construction does not violate the deed restriction.

42 Pa. C.S.A. §7533 of the Declaratory Judgments Act3 provides in pertinent part:

“Any person interested in a deed, . . ., may have determined any question of construction or validity arising under the instrument, . . ., and obtain a declaration of rights, status, or other legal relations thereunder. ”

The interpretation of the deed restriction in this situation is not an advisory opinion, nor is it a determination of rights in anticipation of an event which may never occur. Contra Wolf v. Cline, 12 D. & C. 3d 346 (1979). The enforcement of the agreement of sale rests directly upon the results of this adjudication. Accordingly, a declaratory judgment action is the proper form of action by which to interpret the deed restriction.

[35]*35Certain legal principles have consistently been applied in dealing with restrictions on the use of land. Such restrictions are:

“[N]ot favored by the law because they are an interference with an owner’s free and full enjoyment of his property; that nothing will be deemed a violation of a restriction that is not in plain disregard of its express words; that there are no implied rights arising from a restriction which the courts will recognize; that a restriction is not to be extended or enlarged by implication; that every restriction will be construed most strictly against the grantor and every doubt and ambiguity in its language resolved in favor of the owner. Restrictions limiting the right of the owner to deal with his land as he may desire fall naturally into two distinct classes, the one consisting of restrictions on the type and number of buildings to be erected thereon, and the other on the subsequent use of such buildings. The restrictions in the former class are concerned with the physical aspect or external appearance of the buildings, those in the latter class with the purposes for which the buildings are used, the nature of their occupancy, and the operations conducted therein as affecting the health, welfare, and comfort of the neighbors. A building restriction and a use restriction are wholly independent of one another arid in view of the legal principles above stated, the one is not to be extended so as to include the other unless intention to do so is expressly and plainly stated; to doubt is to deny enforcement.” Joes v. Park Lane For Convalescents, Inc., 384 Pa. 268, 272-73, 120 A.2d 535, 537-38 (1956).

The restriction in the present case is a budding restriction as opposed to a use restriction. See Jones v. Park Lane For Convalescents, Inc., supra; Kauffman v. Dishler, 380 Pa. 63, 10 A.2d 389 [36]*36(1955); Hamnett v. Born, 247 Pa. 418, 93 A. 505 (1915); Hoffman v. Parker, 239 Pa. 398, 86 A. 864 (1913).

In Snyder v. Factory Automated System Techniques, Inc., 51 D. & C. 2d 345 (1970), the court construed a deed restriction which provided that ‘no building other than a residence shall be erected on said lot, ...” followed by a use restriction “that neither said lot nor any building erected thereon shall be used for any commercial purpose.” The first restriction was held to be a building restriction. It was further held that the restriction did not expressly prohibit the erection of more than one structure on a lot; it limited the type of structure that could be erected but not the number. The construction of forty dwelling units within 18 structures was therefore permitted.

In accordance with the prevailing case law, the question of whether a condominium is a residence must be answered in the affirmative and we hold that the proposed condominium is a residence within the meaning of the deed restriction involved herein.

The next issue to be resolved is whether the proposed condominium construction would violate the restriction requiring residences to be erected “on lots only having a frontage on either streets or avenues of not less that fifty (50) feet.” Defendants contend that each residence must be on its own lot and each lot must have 50 feet of frontage; condominium units do not have any such frontage due to their nature as units within a single larger structure, and are therefore prohibited by the deed restriction. Plaintiffs argue that the “residence” which must be built on a lot with a least fifty (50) feet frontage is the entire ten-unit condominium, and that due to the joint ownership of the common ele[37]*37merits, there is one “lot”, jointly owned, with sufficient frontage.

In Weidle et ux. et al. v. Bustleton Development Corporation, 26 Bucks 105 (1972), defendant proposed to build two six-unit townhouse structures on a tract of land subject to the following deed restrictions: “Nothing other than private residences and private garages or other such private buildings shall be erected on any part of the subdivision. ... No building shall be erected on any lot having less than 63 feet frontage ...” Each of the townhouse structures was to be approximately 120 feet in length on its respective parcel of not less than 158 feet of frontage.

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Related

Rome v. Rehfuss
137 A.2d 233 (Supreme Court of Pennsylvania, 1958)
Jones v. Park Lane for Convalescents, Inc.
120 A.2d 535 (Supreme Court of Pennsylvania, 1956)
Parker v. Hough
215 A.2d 667 (Supreme Court of Pennsylvania, 1966)
Kauffman v. Dishler
110 A.2d 389 (Supreme Court of Pennsylvania, 1955)
Shapiro v. Levin
302 A.2d 417 (Superior Court of Pennsylvania, 1973)
Peoples-Pittsburgh Trust Co. v. McKinley-Gregg Automobile Co.
44 A.2d 295 (Supreme Court of Pennsylvania, 1945)
Price v. Anderson
56 A.2d 215 (Supreme Court of Pennsylvania, 1947)
Darby v. Ventresca
10 A.2d 389 (Supreme Court of Pennsylvania, 1939)
Hoffman v. Parker
86 A. 864 (Supreme Court of Pennsylvania, 1913)
Hamnett v. Born
93 A. 505 (Supreme Court of Pennsylvania, 1915)

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Bluebook (online)
28 Pa. D. & C.3d 32, 1983 Pa. Dist. & Cnty. Dec. LEXIS 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larkin-v-mcgeehan-pactcompllehigh-1983.