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Facts: Last year, Mr. Gordon Carpenter purchased a home in the River View Subdivision in the state of Pennsylvania.The deed to the property that Mr.

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Facts:

Last year, Mr. Gordon Carpenter purchased a home in the River View Subdivision in the state of Pennsylvania.The deed to the property that Mr. Carpenter purchased includes a notation that the property is subject to the Covenants, Conditions, and Restrictions of River View Subdivision that was recorded on June 1, 2001. The relevant portions of thecovenants and restrictions states: "The following covenants and restrictions shall run with the land and shall bind the purchasers, their heirs, successors and assigns, until abrogated by a duly recorded agreement executed by the owners of a majority of the residential lots affected by the restrictions. 1. USE. No lot shall be used except for residential purposes. No commercial or business activity shall be conducted within the Subdivision with the exception of a personal home office." Mr. Carpenter operates a welding business and when they are not in use, he parks two of his 1.5 ton welding trucks on a large parking area he has cleared next to his residence. He uses the trucks solely in conjunction with his business and performs routine maintenance and minor repairs on the trucks at his residence. Mr. Michael Smart, acting as president of the home owners association, advised Mr. Carpenter that parking the trucks on the property violates the restrictive covenant regulating the use of the property. Mr. Carpenter refuses to stop parking the trucks at his property.

Brief Answer: Based on the facts above, you can sue Mr. Carpenter for violation of the restrictive covenant. Under Pennsylvania law, a restrictive covenant is violated when the covenant restricts the use of parking lots to residential purposes and the owner performs routine maintenance and minor repairs on two business vehicles on the lot. In your case, Mr. Carpenter's parking of his welding trucks at his residence when not in commercial use violates the covenant restricting the use of the property to residential purposes.

Reasoning:

The case law regarding restrictive covenants is in Jones v. Park Lane for Convalescents, 384 Pa. 268, 120 A.2d 535 (1956), which the court stated that land-use restrictions are not favored, are strictly construed, and no act will be deemed a violation of a restriction that is not in plain disregard of its express words. However, this summary of the law does not give guidance as to how the law applies in fact situations such as those presented in the your case. A court opinion that does provide guidance is Baumgardner v. Stuckey, 735 A.2d 1272 (Pa. Supr. 1999). In Stuckey, the defendant, Mr. Stuckey, purchased residential property in a property development that was governed by restrictive covenants. One covenant provided that no lot could be used except for residential purposes. Mr. Stuckey, a truck driver, parked his truck tractor and one or more trailers on the property when they were not in use and performed repairs on the truck-tractor on the property. The plaintiffs, the Baumgardners, representing the Architectural Control Committee of the development, sought injunctive relief against Mr. Stuckey claiming that the parking of the tractor-trailer on the property violated the restrictive covenant. The trial court held that the covenant did not prohibit Mr. Stuckey from parking his tractor-trailer on the property. On appeal, the Superior Court noted that the covenant prohibits any commercial use of the property in the development. The court noted that Mr. Stuckey's use of the tractor-trailer was clearly commercial in nature. The court went on to state that "the storage of such equipment must be deemed commercial in nature, as the tractor and trailers are an integral part of Stuckey's commercial business." The court held that Stuckey's storing of the truck- tractor and/or trailers on the property violated the covenant requirement that the property be used solely for residential purposes. In your case, just as in Stuckey, the restrictive covenant limits the use of the property to residential purposes and Mr. Carpenter keeps vehicles, when not in use, at the residential property. The vehicles, which are the two welding trucks, are used solely in conjunction with his business. In both cases, repairs were performed on the vehicles at the residence. Just as in Stuckey, the parking and repair of the vehicles is commercial in nature and an integral part of Mr. Carpenter's business, and not a residential use of the property. Therefore, Stuckey is clearly on point, and if the reasoning of that case is applied in your case, Mr. Carpenter's parking, maintenance, and repair of the welding trucks at his residence is a clear violation of the restrictive covenant limiting the use of the property to residential purposes. A possible counterargument is that Stuckey is not on point because in Stuckey, the defendant stored equipment as well as a tractor-trailer on the property and in your case, Mr. Carpenter merely parked his work vehicles on the property. This is a distinction without a difference. In both cases, the vehicles are used primarily in conjunction with the owners' commercial enterprises and are parked and repaired on the residential property. What's supporting the Stuckey case was that the storage or parking of such vehicles when not in use is commercial in nature, not a residential use, and thus in violation of the restrictive covenant.

Conclusion:

Mr. Carpenter violated the restrictive covenant under Pennsylvania law.

Prepare a demand letter to Mr. Carpenter demanding that he stop parking his welding trucks on his property in the River View Subdivision. Inform him that his actions violate the restrictive covenant. Also inform him that if he does not cease parking the trucks on the property within 14 days, we will take the appropriate steps necessary to obtain the relief provided by law. Use the law office letterhead in Assignment 1 above. The office file number is 201-006. The letter is too Mr. Gordon Carpenter, 1306 River View Road, (your city and state). The date is today's date. Draft the letter in modified block style.

How would you construct all of the facts, brief answer, reasoning , and conclusion from the opinion letter, into the demand letter in the format provided below?

image text in transcribedimage text in transcribed
Ms. Pituk November 22, 2016 question, was a trust, or non-natural person. Therefore, pursuant to the By-Laws, neither the trustee nor his spouse could serve as Director. It is my understanding that Mr. Branson has recently resigned from the Board of Directors, and so no further steps need to be taken to affirmatively remove him. However, Mr. Everett is rightly concerned that the Board, and particularly the nominating committee, failed in its efforts to qualify properly potential Directors. More importantly, the fact that the Board took actions during Mr. Branson's unqualified tenure raises the specter that all of the Board's actions could be invalidated. Accordingly, Mr. Everett hereby demands that the Board and/or nominating committee review all of the Directors' current qualifications to serve and cease allowing non- qualified members to serve. Mr. Everett further demands that the election held in October 2016 be rescinded and a new election held with the no more than eleven qualified directors as Article III, Section A of the By-laws. Mr. Everett further asks for a written response within ten (10) days outlining the steps that the Board will take to ensure this issue does not arise in the future. If you have any questions, please do not hesitate to let me know. Very truly yours, CANNON, MIHILL & WINKLES Logan B. Winkles Enclosure (1)CANNON, MIHILL & WINKLES, LLC Attorneys at Law Thomas J. Mihill 101 Marietta Street, NW Suite 3120 Logan B. Winkles Atlanta, Georgia 30303 (P) 404.891.6700 (F) 404.891.6701 November 22, 2016 Via UPS Overnight Mail Ms. Pauline Pituk President of the Board of Directors Plantation at Lenox Unit Owners Association 3033 Lenox Road Atlanta, Georgia 30324 Re: Qualifications to Serve on Board of Directors Dear Ms. Pituk, I have the privilege of representing Perry Mitchell Everett, who has been a long time homeowner and member of the Plantation at Lenox Unit Owner's Association. Mr. Everett has asked me to review the Condominium's Declaration and By-Laws as well as a title search that he obtained, and we have determined that a recent member of the Board, Alton H. Branson, was not qualified or authorized to serve on the Board because he was not an "owner" or married to an "owner" as those terms are defined in the Amended and Restated Declaration (the "Declarations"). The fact that Mr. Branson was not qualified or authorized to serve calls into question the efficacy of all Board-related decisions during his tenure. As you know, the By-Laws specifically set forth the requirements and qualifications of a member of the Board of Directors. Specifically, Article III, Paragraph (A), Section 1, provides that the "directors shall be Owners of Units or spouses of such Owners." (Emphasis added). Moreover, the By-Laws are unambiguous that only a an Owner who is a natural person (as opposed to a trustee or corporate officer) may serve on the Board of Directors. Under Article I, Section 5, a non-natural person "Owner" (i.e., a trust or corporation) may appoint a natural person to represent the Owner in certain aspects, but such person "may not be elected or appointed to serve as a Director." Thus, to be clear, only Owners who are natural persons are qualified and authorized to serve as a Director. The term "Owners" is specifically defined in the Declarations as "the record title holder of a Unit within the Condominium.' For your review, I have attached a Certificate of Title related to the ownership of the condominium owned by Mr. Branson's husband, Eric Lautzenhiser. As you will note, Mr. Lautzenhiser only owned his unit as a natural person "record title holder" since October 10, 2016. While Mr. Branson may be qualified to be a director by virtue of being the spouse of Mr. Lautzenhiser on or after October 10, 2016, he was not so qualified prior to that date. Prior to October 10, 2016, the "Owner" of the unit in www.cmw-law.com Iwinkles@cmw-law.com

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