# FILED

November 24, 1998 Cecil W. Crowson Appellate Court Cle rk 

## 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/Appel

lant. )

APPEAL FROM THE CHANCERY COURT FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE
THE HONORABLE THOMAS E. GRAY, CHANCELLOR

For Plaintiff/Appellee : For Defendant/A ppellant : Keith C. Dennen Kenneth F. Scott James C. Bradshaw Tune, Entrekin & White Wyatt, Tarran

t & Combs Nashville, Tennessee Hendersonville, Tennessee



## REVERSED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal involves a dispu te concerning the int

erpretation of

the declarations of a planned unit developm ent in Sumner County.After the owne r of a rental apartment complex in the plann ed uni t development recor ded conflicting declarations,the development’s homeowners associa tion filed suit in the Chancery Courtfor Sumner County se eking declaratory and inj unctive relief. On cross motions for summary judgment, t

he trial court held t

hat the development’ s declarations required the owner of the re ntal apartment com

plex to record decla

rations 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 misinte

rpreted the develop

ment’s declarati

ons and that it was not required to recor

d declarations of

its own. We agree and hold that the owner of the rental apartment complex , not the homeowners a ssociation, is

entitled to a judgment
as a matter of law.

Therefore, w

e 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 Maple s. In July 1975, it recorde d an “Amended Dec

laration
o f Covenants, Conditions and Restrictions” for the entire development (“Maples Declarations”) as required by the H orizontal Property

Act [Tenn. Code Ann. §§ 66- 27-101, -123 (1993)]. These declarati ons anticipated future

development of prope

rty in The Maples, and

accordingly, Art

icle VII(2) prov

ides, in part: Any developerof a multi-family complex shall as a condition precedent

to the development of th e same cause to be prepared covena

nts and restrictions o

f the type and nature wh ich m ay be enforced in a court of equity for t he benefit of all of the reside

nts of said multi-fa

mily complex. The rema inder o f Article VII( 2) deals with the co

ntents, duration, a

pproval, and recordation of the c

ovenants required by A

rticle VII(2)1 See M aples Declara tions, Art. III(B) . The declaratio ns define “lot” a

s “any plot of lan d shown upon any recor ded 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). -3- The Maples Declara

tions contain a fair

ly standard set of land

use restrictions
as well as a mechanism for their en forc ement. They establish a homeowners association

whose membership c

onsists of the “owner

s of lots” in The Map

les, 1 and Article VII(1 ) provides, in part:

The Association, or

any Owner, shall have the right to enforce, by any pr

oceeding at law or in equity, all restrictions,conditions, covenant s, reservations,

liens and charges now or hereinafte r imposed by the pr

o visions of this Declaration.

In Dec ember 1993, T & R Nashville Ltd. Partnership (“T & R”) purchased approximately

thirteen acres of

property in

The Maples and construct ed an apartment
co mplex co ntaining 160 rental apa rtments called the Waterview Apar tments. The homeowners association decided that the Watervie w Apartments wa

s a “multi-family complex” for the purpose of Article VII(2) and sometime in 1995 requested T & R to prepare and reco

rd restrictions cove

ring the Waterview Apartments . T & R at first resisted this req uest because it belie ved that the term “m

ulti-family comple

x” in Article VII(2

) meant condominium u

nits, not rental apa

rtments.

The Maples homeowners association continued

to press the

issue. Finally, in September

1995, T & R mailed the h o meowners associa tion a copy of a set of declarations

it intended to recor

d in the offic e of the Sumner Coun ty Register of Deeds (“Waterview D

eclarations”). Section 3, the enf orcement provisio n of the Waterview Dec

larations, provide s: Enforcement

of t hese Covenants and Restr ictions shall be by any proceeding at law or in

equity against any personor pers ons violating or attempti ng to violate any covenant or restrictions, e

ither to restrain th

e violatio n or to recover damages.

These Covenants an

d Restrictions

are intended to benefit the Res idents, the Owner or future owners of the Apartments

. The Owner is the only person entitled to enforc e these Covenants an d Restrictions. No third person or entity is ent itled to do so. Failure by Owner to enforce any Covenant or Restrict io n herein contained shall in no event be deemed a waiver of the right to do

so-4- thereafter. In no event shall Owner h ave any liability to any Resident o r any thir d party by virtue of the failure to enforce any Covena

nt or Restriction he

rein contained. In its transmittal let ter, T & R reiterated its b elief that Artic

le VII(2) did not

require itto file declarati

ons and th at neither the homeow ners association nor

the other lot
o wners in The Maples could proceed directly against the Waterview Apartment’s tenants for violations of either the Maples Declar ations or the Waterview Declarations. T

& R recorded the W

aterview Decla

rations on Septembe

r 8, 1995.

On October 6, 1995, the homeowners association filed suit in the Chancery Courtfor SumnerCounty seeking a declaration that Section 3 of the Waterview Declarations

was inconsistent wi

th Article VII( 1) of the Maple s De clarations and requestingthe court to

or der T & R to confor

m the Waterview

Declarations to th

e Maples Declarat ions. Ultimately, both parties filed cross-motions for summary judgment based on their respe ctive interpretatio ns of the Maples Declara tions. On June 26, 1996, the trial c ou rt granted the homeo wners 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 Water vie w Apartmentswas a “multi-fa mil y complex” for the purpose of A rticle VII(1) o

f the Maples Covenants, (3) tha t the Mapl es Dec larations required T & R to record declarations

for the Waterview A

partments, and (4)

that Article VI

I(1) of the Maples Declarations

permitted the homeo

wners association o

r any other lot owner

in The Maples to enforce t

he Waterview D

eclarations direc

tly against tenants

living in the Waterview Apartments.

II.

The pivotal issue on this appe al invol ves an interpretation of the Maples Declarations. T & R asserts t hat the Waterview Apar

tments is not a “multi-

family complex” and, therefo re, 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 owne

rs in The Maple s may en force the Waterview declarations must be decided in T & R’s favo r.-5- A.
Covenants, conditions, and restrictions such as the ones contained in the Maples Declarations ar

e property interest

s that run with the la

nd. See Turnley v. Garfinkel , 211 Tenn. 125, 130, 362 S.W. 2d 921, 923 (1962). They arise, however, from a series of overlappi ng contractual tran sactions. Se e Restatem ent (Third) of Property: Servitudes § 4.1 cmt. c (Te ntative Draft No . 4, 1994). Acc ordingly, they should be viewed as contracts , see Clem v. Chri stole , 582 N.E.2d 780,

782 (Ind. 1991); Russell v. Williams , 964 P.2d 231, 234 (Okla. Ct. Ap

p. 1998); Houck

v. Rivers , 450 S.E.2d 106, 108 (S.C. Ct. App. 1994); Shafer v. Board of Trustees of Sandy Hook Yacht Clu b Esta tes, Inc. , 883 P.2d 1387, 1392-93 (Wash. Ct. App. 1994), and they shouldbe construed using the rules of constructi on generally applica

ble to the construction

of other contracts. See Xinos v. Vill age 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. Em mons , 966 S.W.2d 474, 478 (Tex . 1998).

The courts enforce restrictions accordin g to the clearly expresse

d intentions of the parties manif

este d in the restriction s themselves. See Lapray v. Smit h , 804 S.W.2d 87, 89 (Tenn. Ct. App. 1990); Benton v. Bush , 644 S.W.2d 690, 691 (Tenn. Ct. App. 1982). We gi

ve the terms used in restrictions thei r fair and reasona

ble meaning, see Parks v. Richardson , 567 S.W.2d 465, 467-68 (Tenn. Ct. App. 1977), and we decline to ext

end them beyond their c learly expressed sco pe. 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 ap pea r. See Hillis v. Powers , 875 S.W.2d 273, 276 (Ten n. Ct. App. 1993).

When the restriction’s t

erms are capable

of more than one construc tion, we shouldadopt the construction that advances the unrestricted use of t he property. See Southern Advertising Co., Inc. v. Sherman , 43 Tenn. App. 323, 327, 308 S.W.2d 491, 493 (1957). We should also resolve am biguities in

the restrictions against the party who drafted them, see Maxwell v. Land Developers, Inc. , 48 5 S.W.2d 869, 874 (Tenn. Ct. App. 1972), and final ly we should resolve al l doubts concerning a-6-

covenant’s applicability aga inst applying th e covenant. See Richards v. Abbottsford Homeowners Ass’n , 809 S.W.2d 193, 195 (Ten n. Ct. App. 1990).

B.

The Maples Declara

tions do not

define“multi-family compl ex,” and thus we must look to other porti

ons of the document to ga rner meaning

for the phrase. The declarations

require that all the

lots inthis planned unit development must be “used for r esident ial purposes exclusively” and provide that the lots may contain either “singlefamily residentia l units” or “resi

den tial units within a mu lti-family unit structure or

complex.” The pr

esent dispute does not involve s ingle family reside

nces.
The declarations

envision two varieties of multi-family co mplexes. The fir

st includes multi-family compl exes in which persons own the residenti al units (i.e., a condominium

complex). The se

cond includes multi-f

amily complexes in w

hich the residential units are leased to t enants (i.e ., an apar tment complex). T he issue to be decided is whether the phrase “multi-family com

plex” as it isused in Article VI I(2) includes both condominium complexes and apar

tment complexes.

When Article VII(2

) is read in its entirety, the only c onclusion to be drawn i s thatthe “covenants and restrictions” to which it refers are those required to be filed by the Horizontal Proper ty Act. See Tenn. Code Ann.§§ 66 -27-102(10), -107(a). The reason for this conc

lusion is straightforw

ard. Article V

II(2) requires th

at these covenants and restrictions shall be “subject to amend ment by approval of tw

o-thirds ( ) of the unit

owners of the compl

ex.” Condominiums ha

ve unit owners,but leased apartmentsdo not. Accordingly, by making amendme nts to the covenants and restrictionsin Article VII( 2) subject to a

p proval by the “unit ow ners,” these covenants and restrictions could only be t hose associated with a c ondominium complex. Accordingly, the only construction of the phrase“multi-family com plex” in Article VII(2

) that is consistent w

ith the remainder of

the article’s lan

guage is that it means a condominium

complex.

Based on our interpretati

on of Article

VII(2), the

trial court erre

d by construing Article VII(2) to requir

e T & R to prepare

and record declar

ations and c ovena nts-7-

be causethe Waterview A

partments is not a con

dominium complex. S ince the Mapl e s Declarations

do not require the pre

paration or filing

of the Waterview

Declarations, it also follows that Artic le VII(1) of the

Maples Declara

tions does not give the Maples Homeowners Association the authority to en force the Waterview Declarations.

III.

We reverse

the summary judgment

for the Maples Homeow

ners 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 Partner

ship. We tax the co sts of this appeal to the Maples Homeown ers Assoc iation, Inc. for which execution, i

f necessary, may issue.

______________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE

_______________________________ BEN H. CANTRELL, JUDGE