Charping v. SCURRY & CO., INC. , 296 S.C. 312 ( 1988 )

Curbton, Judge:

This is an appeal Nom an order granting summary judgment to J. P. Scurry and Company, Inc., and dismissing the complaint of William P. Charping with prejudice. The dispute involves real property. The issue is whether a restrictive covenant contained in a deed is a real or a personal covenant.

Mary Lemon Owens Townsend acquired title to two contiguous parcels of land in Columbia, South Carolina, during 1976. One parcel contained five unimproved lots and faced Forest Drive. The other parcel contained three lots with a residence and faced Stratford Road. The properties abutted along a part of their rear common boundary.

In 1980, Townsend sold the Forest Drive property containing the five lots to a partnership. The deed contained a restriction stating “[t]he above property is to be developed into a maximum of four (4) residential lots, each of which is to be used solely for the construction of a single family residence.” In 1983, Townsend sold the Stratford Road property to William Charping. At the time of closing she told Charping about the residential restriction on the Forest Drive property, but the deed to Charping made no reference to the restriction. Thereafter, in August 1985, Townsend executed a “Modification of Restriction” which purportedly modified the restriction on the Forest Drive property to .increase the number of residential lots from four to six. At that time, she had no ownership interest in either parcel. The partnership conveyed the Forest Drive property to J. P. Scurry & Company, Inc., in late 1985. Charping filed a complaint seeking a declaratory ruling holding the Forest Drive property was subject to the four-lot restriction and requesting an injunction to prevent development by Scurry beyond that number. The record contains no indication Scurry plans to develop the property for non-residential uses. As we view the record, the issue is limited to the question of the maximum number of residences that may be built on the lots.

Scurry filed a motion for summary judgment on the ground Charping had no standing or right permitting him to enforce the four-lot restriction. The court considered the pleadings, certain stipulated facts, five requests for admission, and the “Modification of Restriction” in making its determination. The trial court concluded Townsend’s intent was to create a personal covenant as opposed to a covenant running with the land. The court granted Scurry’s motion.

Charping states in his brief and both parties contended at oral argument that the facts are undisputed. Both parties specifically argue there is no genuine issue of material fact regarding Townsend’s intent. Basically, Charping argues the stipulated facts support his contention Townsend’s intent was to create a covenant running with the land as opposed to the opposite argument of Scurry that Townsend’s intent was to create a personal covenant.

South Carolina recognizes a historical disfavor for restrictive covenants based upon the view that the best interests of society are advanced by the free and unrestricted use of land. Sea Pines Plantation Co. v. Wells, 294, S. C. 266, 363 S. E. (2d) 891 (1987). Courts tend to strictly interpret restrictive covenants and a party seeking to enforce a covenant must show the covenant applies to the property either by its express language or by a plain and unmistakable implication. Sea Pines, 294 S. C. 266, 363 S. E. (2d) 891; Edwards v. Surratt, 228 S. C. 512, 90 S. E. (2d) 906 (1956).

Charping was not a party to the 1980 deed between Townsend and the partnership. He seeks to enforce the covenant by claiming it is a covenant running with the land, and as a subsequent purchaser of Townsend’s property, he may enforce it. Given the rule in South Carolina of strictly construing restrictive covenants and favoring unrestricted use of land, the burden was on Charping to prove Townsend’s clear intention to create a covenant that would run with the land. Edwards, 228, S. C. 512, 90 S. E. (2d) 906; see Stegall v. Housing Authority of Charlotte, 278 N. C. 95, 178 S. E. (2d) 824 (1971) (burden of showing restrictions in a deed are covenants running with the land is upon the party claiming the benefit of the restriction); see also Traylor v. Holloway, 206 Va. 257, 142 S. E. (2d) 521 (1965) (the party who seeks to enforce a covenant restricting free use of land has the burden of proving it prohibits the acts of which he complains) and Anno., 51 A. L. R. (3d) 556 Section 4[b] (1973) and the many cases cited therein.

A restriction limiting the use of property to residential purposes will ordinarily be construed to touch and concern the land. Cf. Epting v. Lexington Water Power Co., 177 S. C. 308, 181 S. E. 66 (1935). However, this is only one of the tests for determining whether a covenant runs with the land. As the parties recognize, there must also be an indication that the parties intended for the covenant to run with the land. Cheves v. City Council of Charleston, 140 S. C. 423, 138 S. E. 867 (1927). In this case, the intention of the parties in placing the restrictions on the lots must be determined as of the time Townsend conveyed title to the partnership. Stegall, 278 N. C. 95, 178 S. E. (2d) 824; Anno., 51 A. L. R. (3d) 556, 579 (1973). The language of the subject covenant does not express such an intention. The covenant does not refer to Townsend’s remaining property, nor does it indicate that it should benefit her heirs, successors and assigns.

In the absence of express language of intention, Charping claims the benefit of a presumption at law. This presumption, he argues, implies that absent tacts showing a contrary intent, when the owner of realty sells a portion of his land and imposes use restrictions upon the portion conveyed, such restrictions are presumed to be imposed for the benefit of the retained land. See Wardlaw v. Southern Ry. Co., 199 Ga. 97, 33 S. E. (2d) 304 (1945).

Although not expressed in exactly the same language, a similar argument was made in Edwards v. Surratt, 228 S. C. at 516, 90 S. E. (2d) at 908. The plaintiffs argued a restriction for residential use placed in a deed conveying approximately three acres was intended to be for the benefit of the remaining property of the grantor and thereby enforceable by subsequent grantees of the remaining property. Id. The Supreme Court held the burden of proof was on the subsequent grantees to show the grantor’s intention and they failed to meet the burden of demonstrating intention by plain and unmistakable implication. Edwards, 228 S. C. at 521, 90 S. E. (2d) at 911. The court did not discuss the presumption of intent as argued by Charping, but looked for evidence of the grantor’s intent from the surrounding circumstances. We therefore reject the presumption urged by Char ping.

When a motion for summary judgment is made, an adverse party may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U. S. 317, 106 S. Ct. 2548, 91 L. Ed. (2d) 265 (1986). In the context of this case, Charping must show by affidavit or otherwise facts regarding the grantor’s intention to benefit the land now owned by him when she restricted the property sold to the partnership.¹

Charping has failed to produce any evidence of Townsend’s intent as would constitute a genuine issue of fact. The stipulated facts indicate Charping entered into the contract to purchase in ignorance of the restriction and did not learn of the restriction until Townsend mentioned it at closing. Charping’s argument that Townsend’s remarks to him at the closing regarding her having restricted the Forest Drive property to residential use constitutes sufficient evidence of Townsend’s intention is without merit. An unappealed finding by the trial court states, “Townsend did nothing [at the closing] to affirm or reaffirm that the restriction was to run with [Charping’s] land and was for [his] benefit.” The record is devoid of further evidence which might assist in determining Townsend’s intent at the time of the creation of the covenant.

Under the evidence in this record, the decision of the trial court is

Affirmed.

Goolsby, J., concurs. Gardner, J., dissents in separate opinion.

1 We have considered remanding for further development of the facts. However, Charping’s attorney stated at oral argument that the parties had stipulated to all of the facts regarding Townsend’s intent. Thus, it would serve no useful purpose to remand.