Biagini v. Hyde

[879]

Opinion

CHRISTIAN, J.

Kenneth and Myrtle Hyde appeal from a judgment enjoining Mrs. Hyde’s part-time operation of a beauty parlor in her home as a violation of a restrictive covenant upon their property.

Before appellants purchased the tract home in question, the developers of the subdivision had recorded a declaration of restrictions upon all the property in the subdivision. The restriction at issue in this appeal reads: “A-l.

Land Use and Building Type.

No lot shall be used except for residential purposes. No building shall be erected, altered, placed, or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one-half stories in heighth [szc] and a private garage for not more than two cars.”

Mrs. Hyde is licensed as a cosmetologist; prior to purchasing her home she discussed with the subdivider her desire to provide limited beautician services in her residence. She was informed that “. . . if the City of Sunnyvale said this was a legal use in the City, we felt there would be no objections to it because we had no objections to it. If it was legal within the City, it was legal as far as we were concerned.” We do not hold that this expression was binding on other owners, who might otherwise be entitled to enforce equitably the terms of the recorded restrictions. (See 14 Cal.Jur.2d, Covenants, § 107.) But this evidence was received without objection pointing out its possible incompetency. Appellants also received notice that other owners in the subdivision objected to Mrs. Hyde’s intended use as a violation of the covenant and that should she proceed with her plans they would bring suit against her. She nevertheless commenced the activity complained of. The present litigation followed.

Mrs. Hyde did not advertise in any way, no external evidence of her activities could be seen, and no inconvenience to the neighbors was caused. But she admitted that she saw as many as six customers a day; she was sufficiently active in the cosmetology business to produce a revenue of about $5,000 a year. The court found that the described activities constituted a “commercial use” detrimental to respondents, carried on in violation of the restriction quoted above; judgment was entered against appellants enjoining Mrs. Hyde’s activities.