             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE

                                                           FILED
TIM OAKLEY and wife,                        )                July 27, 1999
MONICA OAKLEY, HELEN THOMAS,                )
FRANK GRUBBS and wife, BRENDA               )             Cecil Crowson, Jr.
GRUBBS, DANIEL THOMAS and wife,             )            Appellate Court Clerk
SHERRY THOMAS, and JAN FOX,                 )
                                            )
       Plaintiffs/Appellants,               )
                                            )
VS.                                         )   Appeal No.
                                            )   01-A-01-9809-CH-00496
L. SCOTT LANG,                              )
                                            )   Sumner Chancery
       Defendant/Appellee,                  )   No. 96C-237
       Third Party Plaintiff,               )
                                            )
VS.                                         )
                                            )
LAWYERS TITLE INSURANCE                     )
CORPORATION, FREELANCE                      )
SEARCHES, INC., and                         )
SEAN MAHONEY,                               )
                                            )
       Third Party Defendants.              )


      APPEALED FROM THE CHANCERY COURT OF SUMNER COUNTY
                    AT GALLATIN, TENNESSEE

                THE HONORABLE TOM E. GRAY, CHANCELLOR


PHILIP C. KELLY
125 Public Square
Gallatin, Tennessee 37066
       Attorney for Plaintiffs/Appellants

ARTHUR E. McCLELLAN
116 Public Square
Gallatin, Tennessee 37066
       Attorney for Defendant/Appellee


                            AFFIRMED AND REMANDED


                                                BEN H. CANTRELL,
                                                PRESIDING JUDGE, M.S.

CONCUR:
CAIN, J.
COTTRELL, J.




                                 OPINION
              The question we must decide is whether the defendant’s home violated

a subdivision restriction against modular homes. The Chancery Court of Sumner

County held that the plaintiffs had failed to prove their case. We affirm.



                                          I.



              In February of 1996, Scott Lang purchased lot number three in the

Snaffles Subdivision in Sumner County. His deed referred to “restrictions and

easements of record.” Although the record is not entirely clear on what restrictions

were actually in Mr. Lang’s chain of title, a set of restrictions appear in the record

containing the following provision:

              on Tracts 1-10 there shall be no temporary buildings,
              shacks or partially completed buildings used for human
              occupancy, no mobile home shall be placed upon this
              property, nor modular homes.



              Mr. Lang built a foundation on his lot and purchased a partially pre-

fabricated house. The house arrived by truck in two sections. By the end of the day

the two halves of the house had been put together on the foundation. The house then

contained the majority of the electrical wiring but not the plumbing, the heat and air

system, nor the trim. When the two halves were delivered, a portion of the roof was

attached to each side and could be completed by raising the two sides and joining

them together at the peak. Once the house was assembled on the foundation, the

outward appearance could not be distinguished from a house that had been built at

the site.



              When the house was delivered in two halves, the neighbors immediately

protested. Then they filed this action for a mandatory injunction to have the house

removed. The chancellor strictly construed the restriction in favor of the free use of

the property, and held that without a clear definition of what constitutes a modular

home the case should be dismissed.




                                         -2-
                                           II.



              Our cases have uniformly held to the proposition that restrictive

covenants are to be strictly construed against the party seeking to enforce them,

because they interfere with the right of unrestricted use of property. Turnley v.

Garfinkle, 362 S.W.2d 921 (Tenn. 1962); Beacon Hills Homeowner’s Assoc. v. Palmer

Properties, Inc., 911 S.W.2d 736 (Tenn. App. 1995); Jones v. Englund, 870 S.W.2d

525 (Tenn. App. 1993); Essary v. Cox, 844 S.W .2d 169 (Tenn. App. 1992). It follows

then, as some of the cases have held, that such covenants will not be extended by

implication to anything not clearly and expressly prohibited by their plain terms. See

Turnley v. Garfinkle, 362 S.W.2d at 923.



              Although it may seem that we have been more hospitable to certain

covenants than a strict construction rule contemplates, see Judge Crawford’s dissent

in Albert v. Orwige, 731 S.W.2d 63 (Tenn. App. 1987), in this case the plaintiffs have

not furnished us with any definition of the term “modular homes” in the context of

restrictive covenants. There is nothing in this record to show the intent of the owners

who adopted the restrictive covenant in 1987.



              One source of reference might have been the “Modular Building Act”

enacted in 1985 to require inspection at the place of manufacture of pre-constructed

buildings that arrive at the construction site with some or all of the electrical,

mechanical, plumbing and other systems already built into the unit. See Tenn. Code

Ann. § 68-126-302. The Act defined a “Modular Building Unit” as:

                      (6) “Modular building unit” means a structural unit,
              or preassembled component unit including the necessary
              electrical, plumbing, heating, ventilating and other service
              systems, manufactured off-site and transported to the
              point of use for installation or erection, with or without
              other specified components, as a finished building and
              not designed for ready removal to another site. “Modular
              building unit” does not apply to temporary structures used
              exclusively for construction purposes or nonresidential
              farm buildings.

Tenn. Code Ann. § 68-126-303(6).

                                         -3-
              Later, another definition turned up in an opinion of this court in 1990.

The court looked at the legislative history of a 1980 act that prohibited local zoning

ordinances from excluding certain types of manufactured houses from residential

districts. Although the proposed act did not refer to modular homes, the house

members frequently used that term in the debate, because the members were

seeking to protect what they referred to as modular homes as distinguished from

mobile homes. This court concluded that “the legislators’ references to ‘modular’

housing were references to structures that were manufactured and transported in at

least two sections and then joined at the site into a single structure.” Tennessee

Manufactured Housing Association v. The Metropolitan Government of Nashville, 798

S.W.2d 254 at 259 (Tenn. App. 1990).



              Either of these definitions might be what the developers of this

subdivision had in mind. But we note that they are not the same. Under the Modular

Building Act the definition applies to single, complete units as well as units that may

be components of a larger structure. Under the court’s definition in Manufactured

Housing, a single structure constructed off-site would not be a modular home.



              The plaintiffs acknowledge that they did not object when one property

owner moved a complete house into the subdivision and set it on a foundation

constructed for it. If we adopted the statutory definition, that house violated the

covenant. Under the other definition, had Mr. Lang’s house been joined together

when it arrived, there would have been no objection. Or if it had been assembled in

another subdivision and subsequently moved to its present location in one piece it

would not have been a modular home. We conclude that the subdivision developers

must have had something more substantive in mind when they adopted the restrictive

covenant in question.




                                         -4-
              Therefore, we conclude that the chancellor was correct when he found

that the plaintiffs had not carried their burden of proving that Mr. Lang’s house was a

modular home within the restrictions adopted for the Snaffles Subdivision.



              The judgment of the court below is affirmed and the cause is remanded

to the Chancery Court of Sumner County for any further proceedings necessary. Tax

the costs on appeal to the appellants.




                                          _________________________________
                                          BEN H. CANTRELL,
                                          PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM B. CAIN, JUDGE




_____________________________
PATRICIA J. COTTRELL, JUDGE




                                         -5-
             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE

TIM OAKLEY and wife,                       )
MONICA OAKLEY, HELEN THOMAS,               )
FRANK GRUBBS and wife, BRENDA              )
GRUBBS, DANIEL THOMAS and wife,            )
SHERRY THOMAS, and JAN FOX,                )
                                           )
       Plaintiffs/Appellants,              )
                                           )
VS.                                        )      Appeal No.
                                           )      01-A-01-9809-CH-00496
L. SCOTT LANG,                             )
                                           )      Sumner Chancery
       Defendant/Appellee,                 )      No. 96C-237
       Third Party Plaintiff,              )
                                           )
VS.                                        )
                                           )
LAWYERS TITLE INSURANCE                    )      Affirmed
CORPORATION, FREELANCE                     )      and
SEARCHES, INC., and                        )      Remanded
SEAN MAHONEY,                              )
                                           )
       Third Party Defendants.             )

                                 JUDGMENT

              This cause came on to be heard upon the record on appeal from the

Chancery Court of Sumner County, briefs and argument of counsel; upon

consideration whereof, this Court is of the opinion that in the decree of the Chancellor

there is no reversible error.

              In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and decreed by this Court that the decree is affirmed.           The cause is

remanded to the Chancery Court of Sumner County for the enforcement of the decree

and for the collection of the costs accrued below.

              Costs of this appeal are taxed against Tim Oakley, et al., Principals, and

Kelly & Smith Law Office, Surety, for which execution may issue if necessary.



                                   _____________________________________
                                   BEN H. CANTRELL, PRESIDING JUDGE, M.S.


                                   _____________________________________
                                   WILLIAM B. CAIN, JUDGE


                                   _____________________________________
                                   PATRICIA J. COTTRELL, JUDGE
