Sonoma Development, Inc. v. Miller

515 S.E.2d 577 (1999)

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Nature of the Case

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Facts

The Schaers owned two adjacent lots. The lots are long and narrow and share a common sideline that runs from the front to the back of the lots. A three-story, brick house was situated on Lot 38, but Lot 39 was vacant. The north wall of the house on Lot 38 physically encroaches upon the southern boundary line of Lot 39 by 0.1 foot at the northeast corner of the dwelling and by 0.2 foot at the northwest corner of the dwelling. In 1995, the Millers (P) entered into a real estate contract with the Schaers for the purchase of Lot 38. Because the Millers were concerned about future development on Lot 39, the contract included a provision requiring the Schaers to provide a deed restriction on Lot 39 prohibiting the use of a common wall with Lot 38 and requiring a sufficient easement to facilitate maintenance of the portion of the dwelling that encroaches on Lot 39. The Schaers executed a “Declaration of Restriction” requiring “that no improvement of any kind be constructed upon Lot 39 within three (3) feet of the north wall of the existing dwelling on Lot 38.” Although the Schaers were designated as the “Grantor” in the declaration, the document did not name any entity or individual as the “Grantee.' On the same day, the Schaers executed a “Declaration of Easement” in which they granted an easement on Lot 39 “for the benefit of lot 38 to permit the house to remain in its present position . . . and to permit ingress and egress unto lot 39 as reasonably necessary to repair and maintain the northern wall of the house.” The “Declaration of Easement” named the Schaers as the “Grantors” but did not specify anyone as the “Grantee.” The “Declaration of Easement” did, however, state that the Schaers had agreed to sell Lot 38 to P. Both documents were recorded in the clerk’s office of the circuit court. On June 30, 1995, the Schaers executed a deed conveying Lot 38 to P. The deed states that the “conveyance is made subject to recorded conditions, restrictions and easements affecting the property hereby conveyed.” Sonoma (D) purchased Lot 39 from the Schaers. The deed from the Schaers to D, dated February 21, 1997, specifies that the conveyance is “subject to easements, restrictive covenants, restrictions and rights-of-way of record.” P commenced this action because the house that was constructed on Lot 39 violates the three-foot setback requirement contained in the “Declaration of Restriction.” According to a plat of Lot 39, the dwelling on that lot is situated between 2.5 and 2.6 feet away from the north wall of the house on Lot 38. D acknowledges that the “Declaration of Restriction” does not fall within the equitable servitude category of restrictive covenants. Thus, the issue is whether that document creates a valid common law restrictive covenant that runs with the land, frequently referred to as a “real covenant.” The lower court gave summary judgment to P and D appealed.