Northwest Civic Group v. Bernstein , 91 Ohio App. 3d 18 ( 1993 )

I must dissent from the decision of the majority. I find that Covenant 1 prohibits the use proposed by appellants.

When ambiguities exist in a real estate covenant, all doubts should be resolved against a possible construction which would restrict the free use of the land. Bove v. Giebel (1959),169 Ohio St. 325, 8 O.O.2d 341, 159 N.E.2d 425. However, in construing restrictive covenants ordinary meanings as well as ordinary rules of construction apply, and "[t]he first and most fundamental of these rules of course is that of arriving at the intention of the parties * * *." Hitz v. Flower (1922), 104 Ohio St. 47,57, 135 N.E. 450, 453. The entire context must be considered, and restrictive covenants should be construed reasonably so as to effect the purpose for which they were intended.

A provision is ambiguous if it is open to several possible meanings or interpretations. Because restrictive covenants are binding when they appear in a plat dedication, to be fatal an ambiguity in the recitation must be in the object the parties intended to achieve. Covenant 1 lacks the precision that scriveners of such provisions usually strive for, but that does not make its object or meaning ambiguous.

Covenant 1 does not, reasonably, limit only the type of structure that may be erected on the subdivision's lots; it limits the use that may be made of that structure, as well. Indeed, to the extent that it limits the type it also limits the use, because in this case the adjective "residential" necessarily implies a type of structure that is determined by its use. Covenant 1 identifies that use as a "single family dwelling," which limits the occupancy to specific residential purposes and wholly excludes the commercial occupancy and purposes proposed by the appellants. There is no ambiguity.

It is readily evident that the developer who adopted Covenant 1 and the owners who have purchased lots in the Cedar Knolls Acres subdivision through the forty years of its history have all intended to exclude a commercial use of the kind proposed. The integrity of the subdivision as a limited use district has been strictly maintained by all those persons, who have limited their uses to residential uses. Any inexactitude in the plat restriction is superseded by this experience when the intent of the parties is an issue.

On this record, I find that the trial court committed no error when it held that the use proposed by appellants is prohibited by Covenant 1. I would affirm.