Ross v. Harootunian

FRIEDMAN, J.

In this declaratory relief action defendants appeal from a summary judgment in favor of plaintiffs.

On July 13, 1960, defendants, who had originally bought approximately 700 lots within a subdivision at Lake Tahoe, sold one of the lots to Geraldine Bull. The deed contained the following restriction; “Deed Restrictions: Subject to one private dwelling only to contain no less than 650 square feet of floor space. No tents or trailers allowed at any time.” On the same day Geraldine Bull conveyed the same lot to plaintiffs by a deed which omitted the restrictive clause. Both deeds were recorded on July 20,1960.

In September 1965 plaintiffs commenced the present action, alleging that they desired to build a multiple family dwelling on the lot; averring that the deed restriction was void from its inception, also that it was unenforceable by reason of changed conditions and by reason of defendants’ failure to exact the restriction uniformly among lot purchasers; seeking

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a declaration that plaintiffs’ lot was now free of the restriction.

The parties filed their declarations supporting and opposing the summary judgment motion. Plaintiffs’ declaration included a listing of the surrounding lots, showing that on some lots there had been constructed apartment buildings and groups of dwelling units; that on the same block as plaintiffs there were two apartment houses and one duplex, in an adjoining block a dental office, an apartment house and a triplex dwelling; that on others there were trailers. A declaration by defendant Aram Harootunian stated that the subdivision was primarily designed as a summer home tract for single family residences; that by inserting restrictions in his sales contracts he intended to restrict the lots as single family residences for the benefit and protection of all lot owners in the subdivision. In another declaration Mr. Harootunian stated that he was not the original subdivider, but had sold approximately 500 lots in the subdivision and still retained approximately 200 lots; that

with some exceptions

he had inserted the restrictions in the various deeds and contracts; that he had no specific recollection as to individual lots or contracts and it would be necessary to go through the various contracts to determine which of the properties had been sold with or without the restriction; that it had at -all times been his intent to restrict the lots for the purpose and benefit of all the lot owners and to keep the subdivision, insofar as he could control it, a single family residence area.