Forster v. Hall

Present: Lacy, Keenan, Koontz, Kinser, and Lemons, JJ., and
Carrico 1 and Compton, S.JJ.

RICHARD A. FORSTER
                                         OPINION BY
v.   Record No. 021086        JUSTICE LAWRENCE L. KOONTZ, JR.
                                     February 28, 2003
JAMES S. HALL, ET AL.


             FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                      Keary R. Williams, Judge


      In this appeal, we consider whether the chancellor

correctly determined that an implied reciprocal negative

easement prohibits the placement of “mobile homes” on all the

lots of a residential subdivision.   We further consider whether

the chancellor correctly determined that certain structures that

were permanently annexed to the land are not in violation of the

restriction imposed by this easement.

                            BACKGROUND

      On August 25, 1978, Goose Creek Partnership (the

partnership), of which Carl Cartwright, Jr., was a member,

acquired a tract of land in Tazewell County.    The partnership

had the land surveyed and platted as a residential subdivision

to be known as “Goose Creek Estates,” separating it into five

contiguous sections with a total of 113 lots.   The plats of



      1
       Chief Justice Carrico presided and participated in the
hearing and decision of this case prior to the effective date of
his retirement on January 31, 2003.
sections 1, 2, and 3 of the subdivision were recorded in the

land records of the County on December 29, 1978 and contained no

restrictive covenants.   The plats of sections 4 and 5 of the

subdivision were recorded in the land records of the County on

February 14, 1979 and contained only restrictions regarding

approval of sewer and water systems.

     Over approximately the next sixteen years, the partnership

included in the vast majority of the deeds to lots in Goose

Creek Estates sold to the original purchasers a restrictive

covenant providing that “no mobile homes, either single or

double-wide, may be parked and/or erected on the property.” 2

James S. Hall and Joyce S. Hall (the Halls) purchased Lot 3,

Section 4 of Goose Creek Estates on March 9, 1994, from the

partnership.   The Halls’ deed contained the restrictive covenant

against parking or erecting mobile homes on their property.

     Richard A. Forster (Forster) purchased Lot 5, Section 1 of

Goose Creek Estates in March 1996 from Thomas E. Kelley and

Angela A. Kelley, who had acquired the lot from the partnership

in a deed that contained the restrictive covenant against

parking or erecting mobile homes on the property.   Forster also



     2
       The language expressing the restrictive covenant was not
identical in every deed; however, the slight variance of
language is not material to our determination of the issues
raised in this appeal.

                                   2
acquired Lot 35, Section 1 in June 1996 during the partnership’s

attempt to auction the remaining lots of the subdivision. 3

Forster’s deed for this lot did not contain the restriction

against mobile homes, but the restriction was subsequently added

by a recorded deed of correction.   Similar corrective deeds were

recorded for other lots conveyed pursuant to the auction.

       On May 30, 1996, prior to the auction, the Halls also

purchased Lot 2, Section 4 of Goose Creek Estates.   At their

request, the restriction against mobile homes was not included

in the deed for this lot.   On October 31, 1996, David Wayne

McKinney and Eva Sue McKinney (the McKinneys) purchased Lot 1,

Section 4 of the subdivision.   At their request, the restriction

against mobile homes was not included in their deed for this

lot.

       In 1997, the Halls permitted their son to move his “double-

wide manufactured” home onto Lot 2, Section 4 in Goose Creek

Estates.   In 1998, the Halls also permitted their daughter to

move her “double-wide manufactured” home onto this lot.   The

homes were placed on brick foundations.   Porches were added and

the tongues and wheels were removed from both homes.   The Halls

pay the real estate taxes on these homes.



       3
       Forster’s wife was a co-grantee in the deeds of both lots,
but was not a party in the subsequent equitable proceeding from
which this appeal arises.
                                    3
     On August 20, 1997, the McKinneys conveyed portions of

their property in the subdivision by deeds of gift to their

daughters, Stephanie D. Bowling and Margaret E. Brown.   Bowling

and Brown both moved “double-wide manufactured” homes onto their

portions of Lot 1, Section 4.   Each home was placed on a cinder

block foundation and the tongues and wheels were removed.

Bowling and Brown pay the real estate taxes on their homes.

     On February 16, 1999, Forster 4 filed a bill of complaint in

the Circuit Court of Tazewell County against the Halls, the

McKinneys, Bowling, and Brown (hereinafter collectively, the

landowners).   Forster sought a determination “that Lots 1, 2,

and 3 of Section 4, Goose Creek Estates subdivisio[n], each are

subject to [an implied reciprocal negative] easement that no

mobile home, either single or double-wide, shall be placed on

said land at any time,” and that this restriction may be

enforced by the owner of any lot in the subdivision.   Forster

requested that the chancellor enter an injunction requiring

removal of the four double-wide manufactured homes from Lots 1

and 2, Section 4.   The landowners filed answers denying that

these particular lots were subject to the implied reciprocal

negative easement asserted by Forster.



     4
       The owners of another lot in Section 1 of Goose Creek
Estates joined Forster in the bill of complaint, but they are
not parties to this appeal.
                                   4
     The chancellor received evidence in accord with the above-

recited facts during an ore tenus hearing on November 16, 2000.

In addition, relevant to the issues raised in this appeal,

Cartwright was called as a witness by Forster and testified at

length concerning the partnership’s marketing of Goose Creek

Estates.   According to Cartwright, the subdivision, though

platted in five sections, was marketed as a single development.

Cartwright testified that in a number of instances the

restrictive covenant against mobile homes was not included in

the deed to a particular lot at the purchaser’s request.

However, if no such request was made, the restriction was

included in the deed to each lot as a matter of course.    As a

result, 105 of the 113 lots in the subdivision were conveyed by

the partnership with the restrictive covenant.   Cartwright

explained that the purpose of the restrictive covenant was to

“protect” the property of the partnership and the purchasers of

individual lots from “mobile homes” and, thus, benefit the

partnership and the purchasers.

     Cartwright also testified that the intent of the

partnership in including the restrictive covenant in the various

deeds was to keep the subdivision free of mobile homes with “the

tongues sticking out and the wheels hanging down.”   Continuing,

Cartwright testified that the partnership wanted to prevent the

placement of the “old style” flat-roofed mobile homes in the

                                   5
subdivision.   By contrast and without objection, he indicated

that the partnership had not contemplated barring all

“manufactured homes” from the subdivision and that aesthetically

the homes at issue now are not of the type contemplated by the

partnership when the restriction was imposed on the various lots

in the subdivision.

     By letter to counsel dated August 14, 2001, the chancellor

opined that an implied reciprocal negative easement prohibits

the placement of mobile homes on any lot in Goose Creek Estates

and that Forster has the equitable right to enforce this

easement.   However, the chancellor further opined that the homes

placed by the landowners on their lots are not in violation of

the restriction imposed by the easement.   In reaching this

conclusion, the chancellor first found it persuasive that the

homes in question have been annexed to the real property and, in

that condition, can only be transferred by deed as real estate

rather than by certificate of title as personal property.     See

Code § 46.2-653; former Code § 46.1-44 (referenced by the

chancellor and effective at time the subdivision was created).

While recognizing that the classification of the structures as

personal property or real property was not dispositive of the

issue whether they are subject to the easement, the chancellor

further opined that Cartwright’s testimony established that

“these structures as they now exist are not the type the common

                                   6
grantor intended to prohibit with the restrictions contained in

the deeds.”    (Emphasis added.)   In contrast, the chancellor

noted that “the condition of the structures at the time they

were moved onto the properties would have rendered them subject

to the restrictions found in the various deeds.”     (Emphasis

added.)

     On January 31, 2002, the chancellor entered a final decree,

adopting by reference the reasoning of the opinion letter and

awarding judgment to the landowners.      This appeal followed.

     Forster challenges the chancellor’s judgment that the

structures placed on the landowners’ lots are not “mobile homes”

within the meaning of the restriction imposed by the implied

reciprocal negative easement.      By assignment of cross-error, the

landowners challenge the chancellor’s judgment that their lots

are subject to the implied reciprocal negative easement.

                             DISCUSSION

     The standard of review that we apply in this appeal is well

established.   Under Code § 8.01-680, we will affirm the

chancellor’s judgment unless it is plainly wrong or without

evidence to support it.    Willard v. Moneta Building Supply,

Inc., 258 Va. 140, 149, 515 S.E.2d 277, 283 (1999); W.S. Carnes,

Inc. v. Board of Supervisors, 252 Va. 377, 385, 478 S.E.2d 295,

301 (1996).    Moreover, in determining whether the evidence

supports that judgment, we consider the evidence in the light

                                      7
most favorable to the prevailing party in the proceedings before

the chancellor.     Id.

     We first consider whether the chancellor correctly

determined that an implied reciprocal negative easement

prohibiting the placement of mobile homes was created on any of

the lots in Goose Creek Estates.    If so, we consider whether the

landowners’ lots are subject to that easement even though they

had expressly sought to exempt their lots from the burden of any

such restriction.

     An implied reciprocal negative easement arises “when a

common grantor develops land for sale in lots and pursues a

course of conduct which indicates an intention to follow a

general scheme of development for the benefit of himself and his

purchasers and, in numerous conveyances of the lots, imposes

substantially uniform restrictions, conditions, and covenants

relating to use of the property.”     Duvall v. Ford Leasing

Development Corp., 220 Va. 36, 41, 255 S.E.2d 470, 472 (1979).

If such a scheme of development is proved, “the grantees acquire

by implication an equitable right . . . to enforce similar

restrictions against that part of the tract retained by the

grantor or subsequently sold without the restrictions to a

purchaser with actual or constructive notice of the restrictions

and covenants.”     Minner v. City of Lynchburg, 204 Va. 180, 188,

129 S.E.2d 673, 679 (1963).    (Emphasis added.)

                                     8
     Here, the record is clear that the partnership that

developed Goose Creek Estates conveyed 93% of the lots in that

subdivision by deeds that contained “substantially uniform

restrictions, conditions, and covenants relating to use of the

property.”   Moreover, Cartwright’s testimony establishes that

this general scheme of development was employed to enhance the

marketability of the lots in the subdivision and was for the

benefit of the partnership and the purchasers of the lots in the

subdivision, such as Forster.

     While it is true that the partnership, the common grantor,

acquiesced in requests from a small number of purchasers to omit

the restriction from their deeds, there is no evidence that this

was done with the concurrence of the other lot owners.

Moreover, the fact the landowners made such requests with regard

to the deeds for their lots is conclusive proof that they had

actual notice of the restriction in deeds to other lots in the

subdivision.   Thus, the landowners were at least constructively

on notice that the restriction could burden the use of their

lots by way of an implied reciprocal negative easement, even

though the restriction was omitted from their deeds.       Minner,

204 Va. at 190, 129 S.E.2d at 680.       Accordingly, we hold that

the chancellor correctly determined that all the lots in Goose

Creek Estates are subject to an implied restriction against



                                     9
parking or erecting mobile homes thereon, and that Forster is

entitled to enforce that restriction.

     We now turn to the issue whether the evidence established

that the structures placed on their lots by the landowners are

in violation of the restriction against “mobile homes” imposed

by the implied reciprocal negative easement.   As with any

restrictions of the free use of land, which are disfavored by

public policy and must be strictly construed, Mid-State

Equipment Co. v. Bell, 217 Va. 133, 140, 225 S.E.2d 877, 884

(1976), the person claiming the benefit of an implied reciprocal

negative easement has the burden to prove its applicability to

the acts of which he complains.    Riordan v. Hale, 215 Va. 638,

641, 212 S.E.2d 65, 67 (1975).    Thus, Forster had the burden of

proving that the structures placed by the landowners on their

lots were not in accord with the restriction imposed by the

common grantor in this case.

     As noted above, the language of the restrictive covenant as

it appears in the various deeds, provides that “no mobile homes,

either single or double-wide, may be parked and/or erected on

the property.”   Our consideration of the covenant and its

application to the evidence in this case ordinarily would be

guided by several well-settled principles.   When the language in

a deed is clear, unambiguous, and explicit, a court called upon

to construe such language should look no further than the four

                                    10
corners of the deed itself.   Irby v. Roberts, 256 Va. 324, 329,

504 S.E.2d 841, 843 (1998).   In such cases, parol evidence of

“‘the circumstances at the time of [the deed’s] creation’ is not

to be considered in giving effect to the clear, unambiguous, and

explicit language of the deed.”   Hoffman Family, L.L.C. v. Mill

Two Associates Partnership, 259 Va. 685, 695, 529 S.E.2d 318,

324 (2000) (quoting Daugherty v. Diment, 238 Va. 520, 525, 385

S.E.2d 572, 574 (1989)).

     We do not find any ambiguity or lack of clarity in the

language of the restrictive covenant in question.   However,

while not expressly finding that this language was ambiguous,

the chancellor considered Cartwright’s testimony to determine

the meaning of “mobile homes” as contemplated by the developers

of the subdivision.   That evidence was admitted without

objection.   Accordingly, although it does not carry the weight

of a stipulation, we also will consider the evidence as

presented to the chancellor without objection in construing the

meaning of the language of the restrictive covenant.   See Bauer

v. Harn, 223 Va. 31, 36, 286 S.E.2d 192, 194 (1982).

     At the time the first deeds for lots in Goose Creek Estates

were executed, the term “mobile home” was defined by statute as

“a building constructed on a chassis for towing to the point of

use and designed to be used as a dwelling; or two or more such

units separately towable, but designed to be joined together at

                                   11
the point of use to form a single dwelling and which is designed

for removal to and installation or erection on other sites.”

1975 Acts, ch. 535 (enacting Code § 55-248.41). 5   Here, it is not

disputed that the structures in question were built on chassis

so that they could be towed to their points of intended use and,

thus, fall within the ambit of the definition of a “mobile

home.”   Indeed, the chancellor found that these structures, at

the time they were moved onto the landowners’ lots, were in

violation of the restrictive covenant for that reason.

     Cartwright’s testimony does not contradict that conclusion.

Rather, his testimony, taken in the light most favorable to the

landowners, is that once these structures were annexed to the

land they were no longer the type of mobile homes contemplated

by the language of the restriction.     The chancellor agreed and,

thus, found that these structures “as they now exist” do not

violate the restriction.   We disagree.

     The chancellor’s finding in this regard is not one of fact

but of law.   The chancellor’s finding is not binding on this



     5
       Subsequent amendments to Code § 55-248.41 modified this
definition, but did not alter the basic description of the
structure as one constructed on a permanent chassis for the
purpose of being towed to its point of intended use. Effective
January 1, 1990, the term “mobile home” was changed to
“manufactured home” in Code § 55-248.41 and in other
definitional statutes, see, e.g., Code § 46.2-100. For purposes
of this appeal, we treat the terms mobile home and manufactured
home as synonymous.
                                   12
Court because we are provided with the same opportunity as the

chancellor to consider the language of the restriction in

question.   See Wilson v. Holyfield, 227 Va. 184, 187-88, 313

S.E.2d 396, 398 (1984); see also Christopher Assocs. v. Sessoms,

245 Va. 18, 22, 425 S.E.2d 795, 797 (1993).   There is no

language in the restriction which permits a structure that is

otherwise a mobile home to be transformed, by placing it on a

foundation and removing its tongue and wheels, so that it no

longer may be considered a mobile home within the meaning of the

restriction.   Moreover, the words “parked and/or erected” negate

any distinction between mobile homes that are temporarily parked

on the lots and those that are placed on permanent foundations.

In short, the structures placed on their lots by the landowners

were mobile homes when originally placed there, and they remain

mobile homes within the meaning of the restrictive covenant as

written by the developers of the subdivision.   Cartwright’s

testimony, in this regard, alters the language of the

restriction and would create a distinction in the type of mobile

home prohibited where no such distinction was created by the

language used in the restriction.

     We recognize that in Williams v. Brooks, 238 Va. 224, 227,

383 S.E.2d 712, 713 (1989), we drew a distinction between

“mobile homes of a temporary character . . . and . . . those

which, as here, are permanent in the sense that they are affixed

                                    13
to the realty and possess most, if not all, of the amenities one

usually associates with an ordinary home.”   However, in Williams

the restrictive covenant used the term “trailer” rather than

“mobile home,” and, while accepting the premise that the two

terms were synonymous, we based our holding upon a further

provision of the restrictive covenant which limited its

application to “structure[s] of a temporary character.”     Id.

There is no such limiting language in the restrictive covenant

from which the implied reciprocal negative easement arises in

this case.   Accordingly, we hold the structures on the lots at

issue here are “mobile homes” within the meaning of the implied

reciprocal negative easement, and the chancellor erred in

finding that Forster has not sustained his burden of proving the

right to enforce that easement.

                            CONCLUSION

     For these reasons, we will affirm the chancellor’s judgment

that all the lots of Goose Creek Estates are subject to an

implied reciprocal negative easement prohibiting the parking or

erecting of “mobile homes, either single or double-wide” on any

lot, reverse the chancellor’s judgment that the structures in

question are not in violation of the restriction contained in

that easement, and remand this case to the chancellor for entry

of a decree directing the landowners to remove the mobile homes

from their respective properties.

                                    14
     Affirmed in part,
     reversed in part,
     and remanded.




15