South-Western Legal Studies in Business

Intention of the Parties Used to Interpret Servitudes That Are Not Clear

Arizona high court held that it would adopt the Restatement (Third) of Property that when servitudes are interpreted, the court will give effect to the intention of the parties determined from the language used in the instrument as a whole.

Topic Real and Personal Property
Key Words

Servitudes; Intent; Covenants and Restrictions; Restatement

C A S E   S U M M A R Y

In 1988 a real estate developer recorded the Declaration of Covenants, Conditions, and Restrictions (CC&R) for an aviation-related planned community with residences and businesses. The CC&Rs prohibited the use of recreational vehicles as temporary residences. Some people used them as permanent residences, so some property owners filed for an injunction prohibiting the use of RVs as permanent residences. The trial court held that the CC&Rs intended to prohibit the use of RVs as residences, permanent or temporary. The appeals court reversed, as the CC&Rs only mentioned RVs as temporary residences. Plaintiffs appealed.


Decision of Court of Appeals vacated; trial court's judgment affirmed. A deed containing a restrictive covenant that runs with the land is a contract. Interpretation of a contract is generally a matter of law. Arizona adopts the Restatement (Third) of Property which holds that restrictive covenants should be interpreted to give effect to the intention of the parties as determined from the language of the document in its entirety and the purpose for which the covenants were created. While the CC&Rs clearly prohibited the use of RVs as temporary residents, it intended to prohibit their use as permanent residences also. The fact that the county allows RVs to be used as residences does not matter as to the limitations imposed in this residential development.


Powell v. Washburn, 125 P.3d 373 (Sup. Ct., Ariz., 2006)

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