FILED

November 24, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MAPLES HOMEOWNERS )

ASSOCIATION, INC., )

)

Plaintiff/Appellee, )

) Sumner Chancery

VS. ) No. 95C-293

)

T & R NASHVILLE LIMITED ) Appeal No.

PARTNERSHIP, ) 01A01-9608-CH-00368

)

Defendant/Appellant. )

APPEAL FROM THE CHANCERY COURT FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE

THE HONORABLE THOMAS E. GRAY, CHANCELLOR

For Plaintiff/Appellee: For Defendant/Appellant:

Keith C. Dennen Kenneth F. Scott

James C. Bradshaw Tune, Entrekin & White

Wyatt, Tarrant & Combs Nashville, Tennessee

Hendersonville, Tennessee

REVERSED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This appeal involves a dispute concerning the interpretation of the declarations

of a planned unit development in Sumner County. After the owner of a rental

apartment complex in the planned unit development recorded conflicting

declarations, the development’s homeowners association filed suit in the Chancery

Court for Sumner County seeking declaratory and injunctive relief. On cross motions

for summary judgment, the trial court held that the development’s declarations

required the owner of the rental apartment complex to record declarations and that the

rental apartment complex’s declarations were inconsistent with the development’s

declarations. The owner of the rental apartment complex asserts on this appeal that

the trial court misinterpreted the development’s declarations and that it was not

required to record declarations of its own. We agree and hold that the owner of the

rental apartment complex, not the homeowners association, is entitled to a judgment

as a matter of law. Therefore, we reverse the summary judgment for the homeowners

association.

I.

Music City Land Development, Inc. acquired two tracts of property in Sumner

County amounting to approximately twenty-eight acres to develop a planned unit

development called The Maples. In July 1975, it recorded an “Amended Declaration

of Covenants, Conditions and Restrictions” for the entire development (“Maples

Declarations”) as required by the Horizontal Property Act [Tenn. Code Ann. §§ 66-

27-101, -123 (1993)]. These declarations anticipated future development of property

in The Maples, and accordingly, Article VII(2) provides, in part:

Any developer of a multi-family complex shall as a

condition precedent to the development of the same cause

to be prepared covenants and restrictions of the type and

nature which may be enforced in a court of equity for the

benefit of all of the residents of said multi-family complex.

The remainder of Article VII(2) deals with the contents, duration, approval, and

recordation of the covenants required by Article VII(2)
1

See Maples Declarations, Art. III(B). The declarations define “lot” as “any plot of land

shown upon any recorded subdivision map of the Properties with the exception of the Common

Area,” Maples Declarations, Art. I(5), and define “owner” as “the record owner . . . of a fee simple

title to any Lot which is part of the Properties . . ..” Maples Declarations, Art. I(2).

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The Maples Declarations contain a fairly standard set of land use restrictions

as well as a mechanism for their enforcement. They establish a homeowners

association whose membership consists of the “owners of lots” in The Maples,1

 and

Article VII(1) provides, in part:

The Association, or any Owner, shall have the right

to enforce, by any proceeding at law or in equity, all

restrictions, conditions, covenants, reservations, liens and

charges now or hereinafter imposed by the provisions of

this Declaration.

In December 1993, T & R Nashville Ltd. Partnership (“T & R”) purchased

approximately thirteen acres of property in The Maples and constructed an apartment

complex containing 160 rental apartments called the Waterview Apartments. The

homeowners association decided that the Waterview Apartments was a “multi-family

complex” for the purpose of Article VII(2) and sometime in 1995 requested T & R

to prepare and record restrictions covering the Waterview Apartments. T & R at first

resisted this request because it believed that the term “multi-family complex” in

Article VII(2) meant condominium units, not rental apartments.

The Maples homeowners association continued to press the issue. Finally, in

September 1995, T & R mailed the homeowners association a copy of a set of

declarations it intended to record in the office of the Sumner County Register of

Deeds (“Waterview Declarations”). Section 3, the enforcement provision of the

Waterview Declarations, provides:

Enforcement of these Covenants and Restrictions

shall be by any proceeding at law or in equity against any

person or persons violating or attempting to violate any

covenant or restrictions, either to restrain the violation or

to recover damages. These Covenants and Restrictions are

intended to benefit the Residents, the Owner or future

owners of the Apartments. The Owner is the only person

entitled to enforce these Covenants and Restrictions. No

third person or entity is entitled to do so. Failure by Owner

to enforce any Covenant or Restriction herein contained

shall in no event be deemed a waiver of the right to do so
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thereafter. In no event shall Owner have any liability to

any Resident or any third party by virtue of the failure to

enforce any Covenant or Restriction herein contained.

In its transmittal letter, T & R reiterated its belief that Article VII(2) did not require

it to file declarations and that neither the homeowners association nor the other lot

owners in The Maples could proceed directly against the Waterview Apartment’s

tenants for violations of either the Maples Declarations or the Waterview

Declarations. T & R recorded the Waterview Declarations on September 8, 1995.

On October 6, 1995, the homeowners association filed suit in the Chancery

Court for Sumner County seeking a declaration that Section 3 of the Waterview

Declarations was inconsistent with Article VII(1) of the Maples Declarations and

requesting the court to order T & R to conform the Waterview Declarations to the

Maples Declarations. Ultimately, both parties filed cross-motions for summary

judgment based on their respective interpretations of the Maples Declarations. On

June 26, 1996, the trial court granted the homeowners association’s motion for

summary judgment. The trial court concluded, as a matter of law, (1) that the Maples

Declarations applied to the Waterview Apartments, (2) that the Waterview

Apartments was a “multi-family complex” for the purpose of Article VII(1) of the

Maples Covenants, (3) that the Maples Declarations required T & R to record

declarations for the Waterview Apartments, and (4) that Article VII(1) of the Maples

Declarations permitted the homeowners association or any other lot owner in The

Maples to enforce the Waterview Declarations directly against tenants living in the

Waterview Apartments. 

II.

The pivotal issue on this appeal involves an interpretation of the Maples

Declarations. T & R asserts that the Waterview Apartments is not a “multi-family

complex” and, therefore, that Article VII(2) does not require it to prepare

declarations. If T & R is correct, then the issue concerning whether the homeowners

association or the other lot owners in The Maples may enforce the Waterview

declarations must be decided in T & R’s favor. 
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A.

Covenants, conditions, and restrictions such as the ones contained in the

Maples Declarations are property interests that run with the land. See Turnley v.

Garfinkel, 211 Tenn. 125, 130, 362 S.W.2d 921, 923 (1962). They arise, however,

from a series of overlapping contractual transactions. See Restatement (Third) of

Property: Servitudes § 4.1 cmt. c (Tentative Draft No. 4, 1994). Accordingly, they

should be viewed as contracts, see Clem v. Christole, 582 N.E.2d 780, 782 (Ind.

1991); Russell v. Williams, 964 P.2d 231, 234 (Okla. Ct. App. 1998); Houck v. Rivers,

450 S.E.2d 106, 108 (S.C. Ct. App. 1994); Shafer v. Board of Trustees of Sandy Hook

Yacht Club Estates, Inc., 883 P.2d 1387, 1392-93 (Wash. Ct. App. 1994), and they

should be construed using the rules of construction generally applicable to the

construction of other contracts. See Xinos v. Village of Oak Brook, 698 N.E.2d 667,

669 (Ill. App. Ct. 1998); Hoag v. McBride & Son Inv. Co., 967 S.W.2d 157, 169 (Mo.

Ct. App. 1998); Toavs v. Sayre, 934 P.2d 165, 166 (Mont. 1997); Pilarcik v. Emmons,

966 S.W.2d 474, 478 (Tex. 1998). 

The courts enforce restrictions according to the clearly expressed intentions of

the parties manifested in the restrictions themselves. See Lapray v. Smith, 804

S.W.2d 87, 89 (Tenn. Ct. App. 1990); Benton v. Bush, 644 S.W.2d 690, 691 (Tenn.

Ct. App. 1982). We give the terms used in restrictions their fair and reasonable

meaning, see Parks v. Richardson, 567 S.W.2d 465, 467-68 (Tenn. Ct. App. 1977),

and we decline to extend them beyond their clearly expressed scope. See Central

Drug Store v. Adams, 184 Tenn. 541, 545-46, 201 S.W.2d 682, 684 (1947); Hamilton

v. Broyles, 57 Tenn. App. 116, 123-24, 415 S.W.2d 352, 355 (1966). We also

construe the terms of a restriction in light of the context in which they appear. See

Hillis v. Powers, 875 S.W.2d 273, 276 (Tenn. Ct. App. 1993). 

When the restriction’s terms are capable of more than one construction, we

should adopt the construction that advances the unrestricted use of the property. See

Southern Advertising Co., Inc. v. Sherman, 43 Tenn. App. 323, 327, 308 S.W.2d 491,

493 (1957). We should also resolve ambiguities in the restrictions against the party

who drafted them, see Maxwell v. Land Developers, Inc., 485 S.W.2d 869, 874

(Tenn. Ct. App. 1972), and finally we should resolve all doubts concerning a
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covenant’s applicability against applying the covenant. See Richards v. Abbottsford

Homeowners Ass’n, 809 S.W.2d 193, 195 (Tenn. Ct. App. 1990). 

B.

The Maples Declarations do not define “multi-family complex,” and thus we

must look to other portions of the document to garner meaning for the phrase. The

declarations require that all the lots in this planned unit development must be “used

for residential purposes exclusively” and provide that the lots may contain either

“single family residential units” or “residential units within a multi-family unit

structure or complex.” The present dispute does not involve single family residences.

The declarations envision two varieties of multi-family complexes. The first

includes multi-family complexes in which persons own the residential units (i.e., a

condominium complex). The second includes multi-family complexes in which the

residential units are leased to tenants (i.e., an apartment complex). The issue to be

decided is whether the phrase “multi-family complex” as it is used in Article VII(2)

includes both condominium complexes and apartment complexes.

When Article VII(2) is read in its entirety, the only conclusion to be drawn is

that the “covenants and restrictions” to which it refers are those required to be filed

by the Horizontal Property Act. See Tenn. Code Ann. §§ 66-27-102(10), -107(a).

The reason for this conclusion is straightforward. Article VII(2) requires that these

covenants and restrictions shall be “subject to amendment by approval of two-thirds

( ) of the unit owners of the complex.” Condominiums have unit owners, but leased

apartments do not. Accordingly, by making amendments to the covenants and

restrictions in Article VII(2) subject to approval by the “unit owners,” these

covenants and restrictions could only be those associated with a condominium

complex. Accordingly, the only construction of the phrase “multi-family complex”

in Article VII(2) that is consistent with the remainder of the article’s language is that

it means a condominium complex.

Based on our interpretation of Article VII(2), the trial court erred by construing

Article VII(2) to require T & R to prepare and record declarations and covenants
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because the Waterview Apartments is not a condominium complex. Since the Maples

Declarations do not require the preparation or filing of the Waterview Declarations,

it also follows that Article VII(1) of the Maples Declarations does not give the

Maples Homeowners Association the authority to enforce the Waterview

Declarations.

III.

We reverse the summary judgment for the Maples Homeowners Association

and remand the case to the trial court for the purpose of entering an order granting a

summary judgment to T & R Nashville Limited Partnership. We tax the costs of this

appeal to the Maples Homeowners Association, Inc. for which execution, if

necessary, may issue.

______________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_______________________________

SAMUEL L. LEWIS, JUDGE 

_______________________________

BEN H. CANTRELL, JUDGE