(251) 299-0101

RESTRICTIVE COVENANTS - ENFORCEMENT - CONSTRUCTION - EX PARTE PHILLIP ODOM

Ex parte Phillip Odom, [Ms. 1160620, Sept. 1, 2017] __ So. 3d __ (Ala. 2017). In this decision by Justice Main, (Stuart, C.J., and Bolin, Parker, Shaw, Wise, Bryan and Sellers, JJ. concur, Murdock concurs in the result) on certiorari review, the Court reverses the Court of Civil Appeals decision reversing a summary judgment entered by the circuit court holding that a homeowner’s construction of a garage violated subdivision restrictive covenants. In reversing the trial court, the Court of Civil Appeals had reasoned that the homeowners combined lots 47 & 58 of the subdivision to avoid a restriction of constructing an accessory structure, a garage, as the only building on a lot. However, the Supreme Court found that the circuit court’s order enjoining construction of the garage was due to be affirmed on the alternative ground that the garage violated another of the restrictive covenants that “garages must not open or face toward the front of the lot.” Ms. *14. In reaching this conclusion, the Supreme Court noted that while doubts must be resolved against enforcement of restrictions and in favor of free use of property, “effect will be given to the manifest intent of the parties when that intent is clear and the restrictions are confined to a lawful purpose within reasonable bounds, and rights created by covenants had not been relinquished or otherwise lost.” Ms. *12-13, quoting Hines v. Heisler, 439 So. 2d 4, 5-6 (Ala. 1983). The Court also noted that it agreed that “absent express provision of the covenants permitting a combined lot to be treated as a single lot for the purposes of applying the restrictive covenants ... the property at issue must always conform with the covenants as they originally attach to the property.” Ms. *13-14.

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