Gilpin v. Jacob Ellis Realties

Jacob Ellis Realties, Inc. (Ellis) (defendant) and Malaun P. Gilpin (plaintiff) owned adjoining commercial properties. Gilpin’s property had a building with a second story. The deeds for the properties contained a restrictive covenant that required any building on Ellis’s property to be set back four feet from the property line so that an air space between the two buildings could exist. Ellis nonetheless constructed a building against the property line, partially blocking off the second-story windows of the building on Gilpin’s property. Neither Ellis nor Gilpin was aware of the restrictive covenant at the time. Following the building’s construction, Ellis’s attorney contacted Gilpin about the restrictive covenant, presumably so that Gilpin could release the restrictive covenant. Gilpin sued Ellis, seeking mandatory injunctive relief compelling Ellis to remove the parts of the building that violated the restrictive covenant. During trial, Ellis presented evidence that remodeling the building to comply with the restrictive covenant would cost $11,500, and Ellis would lose a tenant who was paying $931.25 monthly rent for the next seven years. Gilpin testified that the partial obstruction of her second-story windows cost her $600 per month in perpetuity, but further evidence was presented that Gilpin’s second story was in need of significant renovation, had not been rented for eight years, and was essentially unrentable in its current state. Ellis instead presented evidence that the partial obstruction had caused $1,000 in permanent damage to Gilpin’s building. The trial court denied injunctive relief and awarded Gilpin $1,000 in damages. Gilpin appealed, arguing that the court should have granted injunctive relief or more in damages.