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WILLIAM E. ANDREWS, III, AND KENT F. HUDSON v. THE LAKE SERENE PROPERTY OWNERS ASSOCIATION

JULY 20, 1983

WILLIAM E. ANDREWS, III, AND KENT F. HUDSON
v.
THE LAKE SERENE PROPERTY OWNERS ASSOCIATION, INC., A NON-PROFIT CORPORATION; GERALD P. ACHEE AND CHARLOTTE C. ACHEE; MILAM S. COTTEN AND BETTY F. COTTEN; GEORGE A. BYRNES AND MARION BYRNES; NICHOLAS JOHN FOKAKIS; MICHAEL P. FRYE; GLENN TERRY HARPER AND GAIL B. HARPER; JOHN KILCULLEN, JR., AND PATRICIA J. KILCULLEN; J. GARY McGREGOR AND RENATE L. McGREGOR; MRS. MURIEL McCARTY PALAZZO; SELBY PARKER; AMNNFRED A. PASSMAN AND KATHLEEN ANN PASSMAN; A. J. RICHARDS a/k/a ALEXIS J. RICHARDS AND MARY I. RICHARDS; PHILLIP RANDELL ROGERS; HIRAM W. SUMRALL AND CHARLINE M. SUMRALL; WILLIAM WEST TATUM, JR.; SAMUEL H. TISDALE AND ALICE H. TRIGG; AND E. R. TRUSSELL AND SALLYE LOU W. TRUSSELL



BEFORE PATTERSON, C.J., ROY NOBLE LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

The meaning of the term" lot "in protective covenants, as amended, for Unit Two of the Lake Serene Subdivision in Lamar County, Mississippi, is at the core of this civil dispute.

William E. Andrews, III, and Kent F. Hudson own three lots which are part of a 15 lot resubdivision of the original Lots 83 and 84 of Unit Two of Lake Serene. Andrews and Hudson, Complainants below, are Appellants here. They contend that the protective covenants permit construction of a single dwelling on each such resubdivided lot, provided, of course, that all other protective and restrictive covenants are complied with.

 The Lake Serene Property Owners Association, Inc., Appellee here, argues for a contrary construction of the covenants. The property owners association contends that the restriction of one single family dwelling per lot refers to the original Lots 83 and 84, not to the resubdivision which has brought into existence 15 smaller lots instead of two very large lots.

 After plenary trial on the merits and a careful consideration of the issues involved, the Chancery Court found an" ambiguity "within the covenants relating to the minimum size of lots in Lake Serene, notwithstanding, the Chancery Court held that the covenants should be construed to provide that no more than one single family dwelling may be constructed on original Lot 83 and

 no more than one single family dwelling may be constructed on original Lot 84. Andrews and Hudson have appealed from this ruling. Believing that the Chancellor erred in his resolution of the underlying question of law involved in this case, we reverse. We hold that Lots 6, 7 and 13 of the Lakeview Subdivision are separate lots within the meaning of the restrictive covenants applicable thereto.

 Lake Serene is a residential subdivision located on Highway 98 a few miles west of Hattiesburg but in Lamar County, Mississippi. Unit Two of the entire Lake Serene Subdivision has its own separate plat and its own separate protective covenants. The original plat of Unit Two was filed for record in April of 1965. Lot 83 of Unit Two, as originally platted, consisted of 3.74 acres. Lot 84 of Unit Two consisted of 5.165 acres.

 On June 3, 1965, the original protective covenants for Unit Two were filed for record. Those original covenants provided in pertinent part as follows:

 " 3. LAND USE & BUILDING TYPE: No lot shall be used except for the construction of a dwelling. . . . "

 * * * * *

 " 6. LOT AREA & WIDTH: No dwelling shall be erected or placed on any lot having a width of less than 50 feet at the minimum building setback line nor shall any dwelling be erected or placed on any lot having an area of less than 17,500 square feet. "

 The word" lot "was not specifically defined. Further, no provision of the protective covenants prohibited resubdivision of the original lots of Unit Two.

 On April 25, 1968, the developers of Lake Serene conveyed original Lots 83 and 84 to one Herbert Slay. Less than four months later, on August 13, 1968, to be specific, Slay and his partner W. J. Mims caused to be duly filed for record a plat of the Lakeview Subdivision. This Lakeview Subdivision effected a resubdivision of Lots 83 and 84 of Unit Two. The two large lots were divided into 15 smaller lots, each still having an area of at least 20,000 square feet.

 On May 2, 1973, the protective convenants for Unit Two of Lake Serene were amended. The pertinent provisions of the amended covenants are as follows:

 " 1. Lots 1 through 11 inclusive and Lots 20

 through 98 in said Unit Two of Lake Serene Subdivision shall be known and described as residential lots and no other structure shall be erected, altered or permitted to remain on any of said residential building lots other than one single family dwelling with appurtenant out buildings. "

 * * * * *

 " 5. LOT & AREA WIDTH: No single family dwelling shall be erected or placed on any lot having width of less than fifty feet (50') at the minimum building setback line nor shall any dwelling be erected or placed on any lot having an ...


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