Atkins v. Anderson

California Court of Appeal Mar 19, 1956 No. Civ. 21444Published

Before: Doran

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Holding. The court held that the appellant was estopped from seeking a forfeiture of property based on a restrictive covenant because the appellant had personally violated the restriction, waived the right to enforce it, and failed to show any detriment or damage.

Issues

Whether the appellant is entitled to declare a forfeiture of real property based on a restrictive covenant when the appellant participated in the violation of said restriction.
Whether a forfeiture is appropriate where the appellant failed to prove any damage or detriment resulting from the alleged breach.

Disposition. affirmed

Quotations verified verbatim against the opinion

“plaintiff is estopped to seek or recover a forfeiture where she had knowledge of the condition and participated in the violation of the restriction.”

“The law does not favor forfeiture of property.”

“Under the circumstances of this case, to declare a forfeiture would be oppressive and inequitable.”

DORAN, Acting P, J.

The complaint herein seeks to compel á forfeiture because of the alleged violation of a recorded restriction in respect to real property purchased by respondents Anderson from the appellant.

From the record it appears that the property was acquired by appellant and husband on January 3, 1945. On June 1, 1945, appellant constructed a dwelling house on the property, having a roof covered area of only 580 feet, and

[919]

continued in occupancy thereof until March 15, 1950. The respondents acquired title to this property on July 17, 1951, and remained in possession thereof until November, 1953, no change being made in the size of the dwelling. Thereafter respondents sold to one E. M. Gianone, who increased the footage to 1,700 square feet.

The entire parcel acquired by appellant consisted of

acres, and the dwelling hereinbefore mentioned was built on a plot of an acre and one-half. The restriction here in question, recorded in 1945, provided that “No residence shall have less than 1,000 square feet of enclosed or roofed area. Temporary buildings are permitted to be used on this property until one year after the termination of the present war with Germany and Japan. These restrictions shall continue in full force and effect until October, 1994 and are for the benefit of the grantors, their heirs, successors and assigns and of anyone deriving title from them to any part of this or adjacent parcels of land.” The war with Germany terminated in August, 1945, and the war with Japan terminated in September, 1945.

The complaint alleged the respondents’ breach of this clause by reason of the maintenance of the small dwelling house since July 17, 1951, and after the termination of the wars in 1945. As pointed out in respondents’ brief, the complaint does not allege that the appellant has suffered any damage or detriment, and none was proven. No written memorandum of sale was entered into in respect to the sale to respondents, and nothing contained in the deed refers to any building restriction. No notice of any kind was given by appellant to respondents showing any intention to declare a forfeiture until the present action was filed.

The trial court found “That all of the allegations contained in the defendants’ answer are true,” and that “the allegations of the complaint inconsistent or contrary to the defendants’ answer are untrue.” It is further found that “the deed of conveyance from the plaintiff to the defendant did not contain any restrictions,” and that since the filing of the action, the enclosed area had been increased as hereinbefore stated.

Atkins v. Anderson

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