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District Court of Appeal, First District, Division 2, California.


Civ. 13854.

Decided: March 18, 1949

Nathan G. Gray, of Berkeley, for appellant. Breed, Robinson & Stewart and Edgar B. Stewart, all of Oakland, for respondent.

Plaintiff appeals from a judgment in favor of defendant Hacienda Homes, Inc., in an action brought by her for declaratory relief.

Appellant is the owner of a portion of Lot 47 in Block E of Orinda Park Terrace, a subdivision in Contra Costa County established for residence purposes. As a part of the general scheme of this subdivision the lots including Lot 47 are subject to certain restrictive conditions including the following:

“1. That no building or structure to be used * for any purpose except that of a dwelling house or appurtenance thereto shall be erected or placed upon the above described real property *

“7. No dwelling house or other house or structure shall be erected until the plans and specifications with the proposed site therefor have been submitted to and approved by * Hacienda Homes, Inc., and a written permit issued therefor.”

The only question presented on this appeal is whether respondent Hacienda Homes, Inc., acting pursuant to the restriction numbered 7 above quoted, has the power to determine that it will not permit the construction of any dwelling house upon the portion of Lot 47 owned by appellant.

The question arises in this way: At a time when the entire lot was owned by appellant's parents they constructed a dwelling house on Lot 47. They thereafter sold the part of the lot upon which the dwelling had been built and retained title to the portion of the lot now owned by appellant. Appellant brought her action for declaratory relief asking an adjudication that “plaintiff and her * successors in interest have a right to build and erect upon said real property a dwelling house or appurtenance thereto *.” Faced with this action Hacienda Homes, Inc. considered the question and determined that the use of said portion of Lot 47 as a building site would be detrimental and contrary to the desired, intended and actual residential development of the Orinda area and that said portion of said Lot 47 does not constitute an adequate and acceptable building site.

On the trial respondent was prepared to introduce evidence in support of the reasonableness of this determination but counsel for the appellant stated that he did not question the reasonableness of respondent's determination if it had the power under restriction 7 to make it, counsel stating in this connection: “Our point isn't that they are unreasonable but they are acting in excess of the powers under their covenants.”

The question on this appeal is thereby narrowed to one of the interpretation of restriction 7. Appellant relies on the settled rule that covenants restricting the free use of land are to be strictly construed, 7 Cal.Jur. 733, and upon cases like Farquharson v. Scoble, 38 Cal.App. 680, 177 P. 310 which hold that the plotting of lots upon a map and selling them by reference to the map does not create an implied covenant that no lots in the tract will be broken up or divided. The latter rule is only of indirect application to this case since the right to separate ownership of the two portions of Lot 47 is not questioned. If the ownership of a portion of the lot is burdened by the power of respondent to determine that it is not a suitable building site that burden arises by reason of the restriction on its use imposed by restriction 7 and in no sense affects its ownership or alienability. To argue that because there is no restraint on the right to subdivide Lot 47 the respondent cannot under restriction 7 determine that any fraction of it which may be separately owned is not a suitable site for a home is to beg the question whether that power is given to respondent by restriction 7.

Construing the restriction strictly, as we must, it still appears that both the “plans and specifications” and the “proposed site” are to be approved by Hacienda Homes, Inc. Appellant would have us limit the approval of the “proposed site” to the choice of some location on the fraction of the lot owned by her. The unreasonableness of this construction becomes clear if we assume for example that a lot owner should subdivide his lot into twenty-five foot frontages. If the respondent is without power to determine that each twenty-five foot lot is not a suitable building site then we might have a row of houses on twenty-five foot lots in the midst of a restricted residence district where all other homes were on large lots with ample area on every side. Strict construction does not require unreasonable construction. Walters v. Bank of America Nat. Trust & Savings, Ass'n, 9 Cal.2d 46, 52, 69 P.2d 839, 110 A.L.R. 1259. It seems clear that each lot owner is entitled to construct at least one home somewhere on his lot on a site to be approved by the respondent since the lots were sold for that purpose. It seems equally clear that if it did not comport with the design and development of the tract as a whole no lot owner could insist on building more than one home on any lot. If that is true no lot owner should have it in his power to compel the construction of more than one home on any single lot by the device of dividing its ownership into two or more portions.

Since the reasonableness of respondent's determination is not challenged we have a case where it is not questioned that the portion of Lot 47 owned by appellant is in fact not a suitable site for a home in view of the development of the tract as a whole. This being so under the restriction that no home may be built until the “proposed site” is approved by it respondent acted properly within its powers in disapproving appellant's fraction of a lot as a building site.

Judgment affirmed.

DOOLING, Justice.

NOURSE, P.J., and GOODELL, J., concur.

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