Hillcrest Homeowners Association V. ( 1989 )

No. 89-23
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
HILLCREST HOMEOWNERS ASSOCIATION,
a Montana corporation,
Plaintiff and Appellant,
-vs-
A. G. WILEY and KANCHANA WILEY,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas R. Bostock; Warden, Christiansen, Johnson and
Berg, Kalispell, Montana
For Respondent:
H. James Oleson; Oleson Law Firm, Kalispell, Montana
Submitted on Briefs: June 30, 1989
Decided: August 31, 1989
Justice L. C. Gulbrandson delivered the Opinion of the Court.
Plaintiff, the Hillcrest Homeowners Association, filed
a complaint in the District Court for the Eleventh Judicial
District, Flathead County, alleging that the defendants, A.G.
Wiley and Kanchana Wiley, now deceased, violated a
restrictive covenant by building a garage on their lot in
Hillcrest Estates subdivision, Flathead County. The District
Court entered summary judgment in favor of the defendants.
Plaintiffs appeal. We reverse and remand.
Hillcrest Estates is a residential subdivision located
in Flathead County. In 1969, the owners of Hillcrest Estates
adopted restrictive convenants that were then duly recorded
in the Clerk and Recorder's office in Flathead County. These
covenants provide in pertinent part:
RESIDENTIAL AREA COVENANTS.
-
1. LAND USE AND BUILDING TYPE. No lot
shall be used except for single family
residential purposes, only one residence
per lot and no lot shall be subdivided.
2. IMPROVEMENTS. (a) All homes must be
of new construction and have a minimum of
1600 square feet of living area on the
ground level.
(b) Exterior of improvements must
be completed within one year after start
of construction.
(c) No temporary buildings of any
nature will be allowed during or after
construction, including trailer homes.
In 1979, A. G. Wiley and Kanchana Wiley purchased lot 3
in the Hillcrest Estates subdivision. In late 1980, or early
1981, they completed construction of a steel sided garage on
their property. The Wileys built this garage as part of
their original plan to build a single family residence with a
detached garage. Kanchana Wiley died in May, 1983, and the
actual residence was never built. A. G. Wiley eventually
moved to Utah.
In April, 1987, the Hillcrest Homeowners Association
filed a complaint in the District Court for the Eleventh
Judicial District, Flathead County, alleging that the garage
violated the restrictive covenants. The Hillcrest Homeowners
Association appeal the District Court's finding, which stated
that the garage built on lot 3 is permanent, complete, and
does not violate the restrictive covenants.
The only issue Hillcrest raises on appeal is whether
the District Court erred in determining that the garage did
not violate the restrictive covenants.
Hillcrest argues that the garage violates the
"residential purposes" language of the restrictive covenant.
In particular, Hillcrest argues that while a garage, in
conjunction with a residence, is consistent with "residential
purposes," a garage by itself, absent the development of a
residence, is not consistent with "residential purposes."
Hillcrest therefore argues that the Wileys violated the
restrictive covenant that is applicable to the Hillcrest
Estates. We agree.
Restrictive covenants are generally valid "if they tend
to maintain or enhance the character of a particular
residential subdivision.'' Town & Country Estates Ass'n
(Mont. 1987), 740 P.2d 668, 671, 44 St.Rep. 1257, 1260. When
interpreting a restrictive covenant, this Court applies the
same rules as those applicable to contract interpretation.
Gosnay v. Big Sky Owners Ass'n (1983), 205 Mont. 221, 227,
666 P.2d 1247, 1250. Therefore, this Court must, if
reasonably practical, read the restrictive covenant as a
whole so as to give meaning to every part of the covenant.
See 28-3-202, MCA. In addition, the language of the
covenant is to be understood in its ordinary and popular
sense, see S 28-3-501, MCA, and the language will govern the
covenant's interpretation when the words are plain and
unambiguous. Gosnay, 205 Mont. at 227, 666 P.2d at 1250.
When interpreting the covenant in this case, this Court
must ascertain the meaning of "residential purposes."
Webster's Dictionary defines "residential" as "used as a
residence or by residents." "Residence" is then defined as
"the act or fact of dwelling in a place for some time."
Webster' s Ninth New Collegiate Dictionary 1003 (1986) .
Consistent with these definitions, courts have held that a
garage built on a lot without a dwelling house on the same
lot violates a restrictive covenant when the covenant
specifically limits a lot's use to "residential purposes."
In particular, the Washington Court of Appeals in Sandy Point
Improvement Co. v. Huber (Wash. 1980), 613 P.2d 160, recited:
A private garage is a proper appurtenance
necessary to the enjoyment of a dwelling
house and does not violate a "for
residence purposes only" covenant [cites
omitted]. However, if the garage is
placed on an adjoining lot, it is no
longer deemed to be appurtenant and does
violate such a restriction even though
used in connection with a residence on an
adjoining lot [cites omitted].
Sandy Point Improvement Co., 613 P.2d at 163. In light of
the ordinary and popular use of the word "residential," we
agree with the Washington Court of Appeals1 interpretation of
"residential purposes."
In the present case, Wiley's garage was built on lot 3
in the Hillcrest Estates subdivision approximately seven
years before the complaint was filed. The restrictive
covenant clearly provides that the Hillcrest lots shall be
used only for "single family residential purposes." Reading
the covenant as a whole and in light of the popular and
ordinary meaning of "residential," a garage, by itself, is
not consistent with "single family residential purposes" when
the garage is not used in conjunction with a residential
dwelling. Therefore, we hold that Wiley violated the
restrictive covenant when he built the garage on lot 3 in the
Hillcrest Estates subdivision and did not, within a
reasonable time, build a residential dwelling to accompany
the garage. We therefore reverse the District Court and
remand this case to allow the District Court to determine the
proper relief warranted under the facts of this case.
/'
Reverse and remanded.
We Concur:
Justices
I do not concur with the findings of the majority.