Gambrell v. Nivens

275 S.W.3d 429 (Tenn. App. 2008)

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Nature of the Case

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Facts

In 1991, P purchased 69 acres and subdivided the parcel into four (4) lots, selling three (3) of them, and retaining one (1), a twenty-one-acre lot for themselves. In September 1992, P sold the subject lot to Foshee. In the deed, P left blank the space reserved for reciting encumbrances on the property. Instead, they attached to the deed an untitled, undated, and unsigned page listing the restrictions and recorded it along with the deed. The deed made no mention of the attachment, nor did the text of the attachment refer to the deed. The attachment set forth, in pertinent part, the following: 1. THESE COVENANTS ARE TO RUN WITH THE LAND AND SHALL BE BINDING ON ALL PARTIES AND ALL PERSONS CLAIMING UNDER THEM FOR A PERIOD OF THIRTY YEARS FROM THE DATE THESE COVENANTS ARE RECORDED 2. ENFORCEMENT - ENFORCEMENT SHALL BE BY A PROCEEDING AT LAW OR IN EQUITY AGAINST ANY PERSON OR PERSONS VIOLATING OR ATTEMPTING TO VIOLATE ANY COVENANT, EITHER TO RESTRAIN VIOLATION OR TO RECOVER DAMAGES. 4. LAND USE AND BUILDING TYPE - NO LOT SHALL BE USED EXCEPT FOR RESIDENTIAL PURPOSES. NO MOBILE, MODULAR, OR PREFAB HOMES SHALL BE PERMITTED. P employed this format for the first two lots they sold but expressly incorporated the attachment in the 1993 deed conveying the third lot. All three lots had the same restrictions. Foshee conveyed his lot to D by warranty deed in May of 1996. Foshee provided Foster, his real estate agent, a copy of the restrictions. She, in turn, provided a copy of them to Tapp, the real estate agent for D and discussed them with Tapp during the negotiation phase. Tapp testified that she provided D a copy of the covenants prior to the purchase but acknowledged she could not remember discussing the issue with them. D had begun to build a large wedding chapel and facility. P sued to enforce the purported restrictions and enjoin D from completing the chapel's construction and using it for commercial purposes. The trial court concluded that Ps were entitled to enforce the restrictions because D had actual notice of them prior to the transfer of title. The trial court issued a permanent injunction. D appealed. D contends that the covenants are not enforceable as equitable servitudes.