THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Doris R. Butler, Curtis and Jane Bolton, Rutledge and Ruth Morris, William B. Taylor, James and Betty Harrell, and J. D. and Margie Brannon,        Respondents,

v.

Mark Stewart,        Appellant.

Appeal From Spartanburg County
�Roger L. Couch , Master-In-Equity

Unpublished Opinion No. 2004-UP-060
Heard January 13, 2004 � Filed January 29, 2004

AFFIRMED

H. Michael Spivey, of Mauldin, for Appellant.

Phillip K. Sinclair, of Spartanburg, for Respondents.

PER CURIAM:� Respondents brought this action against Mark Stewart to enforce restrictive covenants prohibiting the commercial use of residential property in the LaMotte Shores subdivision of Spartanburg County.� The master-in-equity found Stewart�s use of the property for business purposes violated the restrictive covenants, and Stewart appeals.�� We affirm.

FACTS

The LaMotte Shores subdivision was established in the early 1950s.� A plat and restrictive covenants for the subdivision are recorded in the Spartanburg County RMC office.� Respondents and Stewart all own property in the subdivision.� Stewart purchased his lot on North Blackstone Road in June 2000.�

The restrictive covenants state all of the lots are residential and prohibit� any �noxious or offensive trade� on the premises.� The covenants provide in relevant part as follows:

2.� All lots tract [sic] shall be known and described as residential lots.� No structures shall be erected, altered, placed or permitted to remain on any lot, other than one detached single family dwelling not to exceed 2� stories high and a private garage for not more than 2 cars and servants[�] quarters or storage.

. . . .

4.� No noxious or offensive trade shall be carried on upon any lot; nor shall anything be done thereon which may be or become an annoyance to the neighborhood.�

At the hearing in this matter, Stewart admitted that he had converted the residence in North Shores subdivision to primarily business use.� Stewart operated a real estate business that bought properties, renovated them, and then resold them.� Stewart testified that on an average day, there were three persons, including himself, working on the premises, and that he saw a couple of clients there each day.� Stewart maintained, however, that only five per cent of his business was handled out of the building and that he was unaware of the restrictive covenants at the time he purchased the lot.� Stewart stated he was notified of the covenants by several other landowners once they realized he intended to use his property for commercial, rather than residential, purposes.� Stewart testified that, although he did not reside at the property, his brother occasionally used the property when he was in town.�

Stewart maintained his business was not increasing traffic or causing other problems in the neighborhood, and that it was not a noxious or offensive trade as prohibited by the covenants.� Additionally, he asserted many major businesses now surround the subdivision and these businesses have more of an impact upon the neighborhood than his business.� Stewart�s property, however, is apparently the only one within the subdivision to be used almost exclusively for business purposes.�

The master found that the prohibition in Paragraph 4 of the covenants against carrying on any �noxious or offensive trade� on the premises �was not intended to change the clear intent of the covenants which limit[] these lots to single family residential use.�� The master reasoned that �[a] person living in a residence might perform some incidental work related to his trade or business.�� The master found the restrictive �[c]ovenants were intended to protect the neighborhood from such changes as have occurred outside the neighborhood without the benefit of the restrictions.�� The master concluded that Stewart�s conversion of his property from a residential lot to a business property was in violation of the restrictive covenants and restrained Stewart from further use of the property for business purposes.

STANDARD OF REVIEW

�An action to enforce restrictive covenants by injunction is in equity.�� South Carolina Dep�t of Natural Resources v. Town of McClellanville, 345 S.C. 617, 622, 550 S.E.2d 299, 302 (2001).� �On appeal of an equitable action tried by a Master, the Court can find facts in accordance with its own view of the evidence.�� Id.

LAW/ANALYSIS

Stewart contends the master erred in finding his use of the property for business purposes violates the subdivision�s restrictive covenants.� We disagree.

 ��Restrictive covenants are contractual in nature,� so that the paramount rule of construction is to ascertain and give effect to the intent of the parties as determined from the whole document.�� Palmetto Dunes Resort v. Brown, 287 S.C. 1, 6, 336 S.E.2d 15, 18 (Ct. App. 1985).

�The court may not limit a restriction in a deed, nor, on the other hand, will a restriction be enlarged or extended by construction or implication beyond the clear meaning of its terms even to accomplish what it may be thought the parties would have desired had a situation which later developed been foreseen by them at the time when the restriction was written.�� Taylor v. Lindsey, 332 S.C. 1, 4, 498 S.E.2d 862, 864 (1998) (quoting Forest Land Co. v. Black, 216 S.C. 255, 262, 57 S.E.2d 420, 424 (1950)).

�It is still the settled rule in this jurisdiction that restrictions as to the use of real estate should be strictly construed and all doubts resolved in favor of free use of the property, subject, however, to the provision that this rule of strict construction should not be applied so as to defeat the plain and obvious purpose of the instrument.�� Id.

�Words of a restrictive covenant will be given the common, ordinary meaning attributed to them at the time of their execution.�� Id. at 4, 498 S.E.2d at 863.� �A restriction on the use of property must be created in express terms or by plain and unmistakable implication, and all such restrictions are to be strictly construed, with all doubts resolved in favor of the free use of property.�� Hamilton v. CCM, Inc., 274 S.C. 152, 157, 263 S.E.2d 378, 380 (1980) (internal citation omitted).�

Stewart first argues Paragraph 4 of the covenants, which prohibits any �noxious or offensive trade . . . upon any lot,� contemplates allowing a business to operate within the subdivision so long as the business is not noxious or offensive.� Stewart asserts that, since his business is not noxious or offensive, his commercial use of the property does not violate the covenants.�

When reading the document as a whole, however, Paragraph 2 clearly intends to limit the primary use of the lots to residential purposes as it states all lots shall be described as residential lots and that only single-family dwellings can be maintained within the subdivision.� Thus, we agree with the master�s finding that, in construing these two provisions together, Paragraph 4 serves to further prohibit a property owner, who is already using the lot for residential purposes, from having any noxious or offensive trade conducted on the premises.� In this case, Stewart admitted that he never lived at the home and that he used it for commercial purposes.

Stewart next argues that the restrictive covenants are invalid or unenforceable because his neighbors have violated the covenants.� The main violation alleged by Stewart is the presence of a three-car garage on one of the lots.� At trial, however, the testimony indicated the garage was used as a two-car garage, with the third bay used only for storage. �Paragraph 2 of the covenants allows �a private garage for not more than 2 cars and servants[�] quarters or storage.�� This is not a significant change in the nature of the neighborhood or a violation, however, that would render the covenants no longer applicable to all property owners.� See, e.g., Sea Pines Plantation Co. v. Wells, 294 S.C. 266, 270-71, 363 S.E.2d 891, 894 (1987) (finding restrictive covenants were not arbitrarily applied and were valid and enforceable).

Stewart further contends the neighborhood has been significantly changed by the surrounding businesses such that the restriction as to residential use is no longer valid.� While it is true that the area surrounding the subdivision includes major companies and businesses, none are located in the area covered by the restrictive covenants.� The restrictive covenants apply solely to the area within the subdivision, and their enforcement is not dependant on developments outside the subdivision.� We agree with the master�s observation that it is precisely due to the presence of the restrictive covenants that the area within the subdivision has been protected from commercial growth, which was the purpose of the restrictions.� For the foregoing reasons, the master�s decision is

AFFIRMED.

GOOLSBY and ANDERSON, JJ., and CURETON, A.J., concur.