## Facts

- Joe and Jeri Gambrell purchased a 69-acre tract in Fayette County, Tennessee, subdivided it into four lots, sold three lots, and retained one.
- In each sale, the Gambrells recorded the deed with an attached page of restrictive covenants that was untitled, undated, and unsigned; the deed left the encumbrances space blank and did not expressly incorporate the attachment.
- The recorded covenants stated they would run with the land for 30 years from recording, limited each lot to residential purposes, and authorized enforcement by suit in law or equity.
- In 1992, the Gambrells conveyed the relevant lot to Frank Foshee; Foshee later conveyed to Sonny and Carrie Nivens within the covenant term.
- The Nivens began constructing and operating a commercial wedding chapel on the lot; they obtained a zoning-board special exception but did not obtain rezoning to commercial use.
- The Gambrells sued to enforce the residential-use restriction and to enjoin commercial use; after a bench trial, the chancery court found the Nivens had actual notice of the restrictions and entered a permanent injunction.
- The Nivens appealed, arguing the covenants were unenforceable due to the deed’s failure to identify or incorporate them and due to alleged release, zoning action, and changed conditions.

## Issues

1. Whether recorded restrictive covenants appearing only on an undated, unsigned attachment—where the deed leaves encumbrances blank and does not incorporate the attachment—are enforceable in equity against remote grantees who had actual notice.
2. Whether the restrictions were released, waived, abandoned, or otherwise terminated by alleged agreement or conduct of lot owners.
3. Whether zoning action and surrounding development rendered the residential-use covenant unenforceable due to changed conditions or public policy.

## Decision

- The Court of Appeals affirmed the permanent injunction and remanded.
- The court held the restrictions were enforceable as an equitable servitude against the Nivens because they took title with actual notice of the recorded covenants.
- The court rejected arguments that the covenants had been released or terminated, or that zoning action or changed conditions defeated enforcement.
- The injunction barring operation of a wedding chapel or other commercial use on the lot was upheld.

## Legal Principles

- Restrictive covenants may be enforced in equity as an equitable servitude against a successor who takes with actual notice, even if the deed omits encumbrances and does not expressly incorporate a recorded covenant attachment.
- Intent to bind successors may be shown by recorded language stating the covenants “run with the land” and bind persons claiming under the original parties for a stated term.
- Use restrictions limiting property to residential purposes satisfy the “touch and concern” requirement for equitable servitudes.
- Estoppel-by-deed principles based on reliance on a deed’s “free of encumbrances” representation do not defeat enforcement where the successor had actual notice and could not reasonably rely on the omission.
- Private restrictive covenants are not extinguished merely by zoning decisions (including special exceptions) or nearby commercial development; termination requires a showing that enforcement is no longer equitable or that the beneficiaries effectively consented to release.

## Conclusion

The court enforced the recorded residential-use covenants as an equitable servitude against remote grantees with actual notice, despite defects in the deed’s treatment of encumbrances, and affirmed an injunction prohibiting commercial operation of a wedding chapel on the property.


Gambrell v. Nivens, 275 S.W.3d 429 (Tenn. Ct. App. 2008)