Posted by: Patricia Salkin | September 4, 2017

AL Supreme Court Finds the Construction of Garage Violated Restrictive Covenant

Robert and Carin Diercks purchased a vacant lot in the subdivision located directly behind their house and began construction of a garage. Plaintiffs, group of homeowners in the subdivision, sued the Dierckses in the Escambia Circuit Court, contending that construction of the garage violated various restrictive covenants. The trial court entered summary judgment in favor of the plaintiffs, enjoined the Dierckses from further construction on the garage, and ordered the removal of what had been constructed. On appeal, the Court of Civil Appeals reversed the judgment of the trial court, holding that the trial court had not properly applied the restrictive covenants.

The court first noted that even though lots can be combined and re-subdivided, absent an express provision of the covenants permitting a combined lot to be treated as a single lot for the purposes of applying the restrictive covenants, the property must always conform with the covenants as they originally attached to the property. Here, Covenant 1.C. originally provided that “carports and garages must not open on or face toward the front of the lot.” The Dierckses argued that their combination of lot 58 that fronted Brooks Boulevard, and lot 47 that fronted Robin Drive, created an ambiguity as to which side of the combined lot is the “front.” The court therefore looked to the covenant as originally intended by the parties at the time the covenant was created. In doing so, the court determined the intent of the covenant was to prohibit a garage or carport located on lot 58 from opening onto Brooks Boulevard. Accordingly, the Court of Civil Appeals’ decision was reversed and remanded.

Odom v Odom, 2017 WL 3821466 (AL 9/1/2017)

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