Gabriel v. Cazier
Plaintiff and defendant lived across the street from each other in a subdivision with a restrictive covenant prohibiting business, trade or any annoyances to be done on one's property. It also required people to have their toilets indoors, attached to a septic tank. Defendant's children taught swimming lessons in their backyard pool. They had eighteen lessons four or five days a week for ten weeks, earning approximately $10,000 annually. This substantially increased traffic and parking in the neighborhood. They also had an outdoor toilet for the swimmers' use. Plaintiffs sued for a permanent injunction against the swimming lessons, general damages, attorney fees, costs, and to have the portable chemical toilet removed.
The trial court found that at least two other families gave swimming lessons in the subdivision; that defendants did not employ anyone outside their family; that this was the only complaint about swimming lessons; that the increase in traffic and parking was acceptable; that the lessons were not annoying; and that plaintiffs have conducted real estate, mail-order, and farm business from their home.
The court ruled that defendants' activity was not a "business" because it was seasonal and because the subdivision had allowed swimming lessons for at least fifteen years without complaint. The trial court did say that the portable toilet violated the covenant however.
Were defendants' swimming lessons a "business?"
Ambiguous terms in restrictive covenants must be interpreted according to the intent of the parties at the time the covenant was drafted.
"Business" is an ambiguous term, so it must be interpreted according to the intent of the parties at the time the covenant was drafted. The trial court heard evidence by the writer of the declaration who stated that the clause was intended to prohibit auto repair shops and animal kennels. The trial court also heard that two other families have given swimming lessons, one for over fifteen years, with ever having a complaint. This supports the idea that this was not the intended meaning of business.
Defendants' swimming instruction was not a business. Affirmed.
While the conduct of others does not show that this was not a business, it does show that this clause was abandoned.