Charping v. SCURRY & CO., INC.
296 S.C. 312, 1988 S.C. App. LEXIS 131, 372 S.E.2d 120 (1988)
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Rule of Law:
For a restrictive covenant to run with the land and benefit a grantor's retained property, the party seeking enforcement bears the burden of proving the grantor’s clear and unmistakable intention to create such a benefit; this intent will not be presumed merely because the grantor retained adjacent land.
Facts:
- In 1976, Mary Lemon Owens Townsend owned two adjacent parcels of land, one fronting Forest Drive and the other fronting Stratford Road.
- In 1980, Townsend sold the Forest Drive property to a partnership, and the deed included a restriction stating the property was to be developed into a maximum of four single-family residential lots.
- In 1983, Townsend sold the adjoining Stratford Road property to William P. Charping.
- At the closing of the 1983 sale, Townsend verbally informed Charping about the four-lot restriction on the Forest Drive property.
- In August 1985, after she no longer owned either parcel, Townsend executed a document purporting to modify the restriction on the Forest Drive property to allow six lots instead of four.
- In late 1985, the partnership sold the restricted Forest Drive property to J. P. Scurry & Company, Inc.
Procedural Posture:
- William P. Charping filed a complaint against J. P. Scurry & Company, Inc., in a state trial court.
- The complaint sought a declaratory judgment to enforce a four-lot restriction on Scurry's property and an injunction to prevent further development.
- Scurry moved for summary judgment, arguing Charping lacked the right to enforce the covenant.
- The trial court granted Scurry's motion for summary judgment, holding that the covenant was personal and not one running with the land.
- Charping (appellant) appealed the trial court's grant of summary judgment to this intermediate court of appeals.
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Issue:
Does a restrictive covenant in a deed, which limits the number of residential lots on a conveyed parcel, run with the land and benefit the grantor's retained land when the deed contains no express language indicating such an intent?
Opinions:
Majority - Curbton
No. A restrictive covenant does not run with the land unless the party seeking to enforce it proves the grantor had a clear and unmistakable intention to benefit the retained land. South Carolina law disfavors restrictive covenants and favors the unrestricted use of land, placing the burden of proof on the party seeking enforcement. The language in the 1980 deed between Townsend and the partnership contained no express words of intent, such as mentioning heirs and assigns or stating that the restriction was for the benefit of Townsend's retained Stratford Road property. The court rejected the argument that such intent should be presumed. Charping failed to produce any evidence of Townsend’s intent at the time the covenant was created, and her later statement to him at closing was insufficient to establish her original intent.
Dissenting - Gardner
Yes. The restrictive covenant should be interpreted as running with the land because it clearly 'touches and concerns' the land by altering its legal use and mode of enjoyment. The restriction limits the property to four single-family residences, a clear alteration of the rights that would otherwise flow from ownership. Furthermore, Townsend’s act of informing Charping about the restriction at the closing of the sale of her retained parcel is strong circumstantial evidence that she intended the restriction to benefit that parcel. Common sense suggests that a grantor imposes such a restriction on their 'backyard' for the benefit of the home they continue to occupy.
Analysis:
This decision reinforces South Carolina's strict constructionist approach to restrictive covenants, placing a high evidentiary burden on subsequent landowners who seek to enforce them. By rejecting a presumption of intent to benefit retained land, the court signals that enforceability for future owners depends on explicit drafting in the original conveying instrument. This precedent makes it significantly more difficult to establish implied covenants that run with the land and underscores the critical importance for drafters to use clear language, such as 'for the benefit of Grantor's retained lands,' to ensure a covenant's longevity.
