Moore v. Megginson

416 So. 2d 993 (1982)

Robert S. MOORE v. Morris Kendall MEGGINSON, etc.

80-702.

Supreme Court of Alabama.

July 2, 1982.

Nathan Friedlander of Marr & Friedlander, Mobile, for appellant.

Noel J. Nelson and Christopher Knight, Mobile, for appellees.

ALMON, Justice.

Plaintiff/Appellee Megginson brought this class action on behalf of himself and other owners of residences in Granato Estates Subdivision, seeking injunctive and declaratory relief against Appellant Robert Moore and against Terry and Mary Malone. Moore, the developer of Granato Estates, had sold two lots in the subdivision to the Malones, who were preparing to build an industrial warehouse and maintenance facility on the lots at the time suit was filed. In the original declaration of covenants and restrictions for Granato Estates recorded in 1973, Moore had reserved to himself the right to annul, cancel, or modify any of the restrictive covenants. In 1978 he amended the covenants to allow use of lots fronting on Schillinger Road (where the Malones' two lots are located) for commercial purposes "for any type business that would be in keeping with the area and neighborhood."

The trial court found that Moore's exercise of his right to cancel or modify the restrictive covenants "must be reasonable, with due regard for the property rights and investments of the persons who relied upon the residential covenants which were in full force at the time of their purchase." The court held "that the intended commercial use of lots numbered 60 and 61 of the Granato Estates subdivision is not in keeping with the area and neighborhood and such intended use violates the restrictive covenants of use which are applicable to the entire subdivision." The Malones had cross-claimed for rescission of their contract of sale from Moore pursuant to a condition in the contract, and the trial court granted this relief.

We find that the trial court's order and judgment falls within the rule announced by this Court in Wright v. Cypress Shores Development Co., [Ms. April 30, 1982] 413 So. 2d 1115 (Ala.1982), and affirm.

AFFIRMED.

FAULKNER, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs in the result.