Christiansen v. Casey

• Decision Date: 02 March 1981
• Docket Number: No. WD,WD
• Parties: Paul A. CHRISTIANSEN and Irene A. Christiansen, Appellants, v. Richard S. CASEY and Vicki Casey, Respondents. 31487.
• Court: Missouri Court of Appeals

Page 906

613 S.W.2d 906

Paul A. CHRISTIANSEN and Irene A. Christiansen, Appellants, v. Richard S. CASEY and Vicki Casey, Respondents.

No. WD 31487.

Missouri Court of Appeals, Western District.

March 2, 1981.

Opinion Modified On Court's Own Motion.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 30, 1981.

Application to Transfer Denied May 11, 1981.

Richard J. Koury, II, Independence, for appellants.

Hugh E. Clemmons, Jr., Graham & Clemmons, Independence, for respondents.

Before MANFORD, P.J., and DIXON and NUGENT, JJ.

NUGENT, Judge.

This is an appeal on behalf of plaintiffs, Paul A. Christiansen, et al., developers of real estate in Blue Springs, Jackson County, Missouri. The Christiansens' petition for temporary restraining order, temporary and permanent injunctions, and damages for violation of restrictive covenants was dismissed with prejudice by the circuit court for plaintiffs' lack of standing. We reverse.

The Christiansens filed suit August 17, 1979, alleging that in May, 1976, Paul A. Christiansen caused to be prepared and filed a declaration of restrictions against Lots 1-63 in Lake Village, a residential development in eastern Jackson County. Included in the restrictions was a provision giving the Christiansens the power to review and approve all plans for the construction of improvements to any of the sixty-three lots, including any proposed fences. The Christiansens alleged that the Caseys, owners of Lot 5, constructed a fence on Lot 5 with actual knowledge that the fence was violative of the restrictive covenants. The record shows that the parties later stipulated that, at the time of the filing of their petition, the Christiansens no longer owned any of the sixty-three lots in question. The Caseys filed a motion to dismiss based on the theory that, because the declaration of restrictions vests the right to seek judicial enforcement of the restrictions solely in fee simple title holders of Lots 1-63 inclusive, the Christiansens lacked standing to bring the action. Reserving its decision on Caseys' motion, the trial court held a hearing on the temporary injunction. Subsequently, the defendants' motion to dismiss was sustained.

A decree or judgment of a trial court will be sustained on appeal "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Therefore, the judgment of the trial court will be reversed if that court erroneously construed the enforcement provision of the restrictive covenants and the applicable law.

Lake Village is a 340-acre residential subdivision of which Lots 1-63 constituted the first tract upon which restrictions were placed. The restricting document, wherein the Christiansens variously described themselves as "owners", "developers", and "undersigned", contains two provisions that give rise to this action, to-wit, in relevant parts:

SECTION II APPROVAL OF PLANS AND SPECIFICATIONS OF

IMPROVEMENTS PERMITTED

No building shall be erected, placed or altered on any lot until the building plans, specifications and plot plan showing the location of the improvements or alterations have been approved in writing as to conformity and harmony of external design with existing structures, and as to location with respect to topography and finished ground level, by the undersigned or their representative, and a complete set of plans and specifications permanently filed with the developer.

No outside work on the house, except clean-up work, may be performed by the buyers until the house is finished. Builders must be approved by the developer.

No fencing shall be permitted on any lot unless the same is chain link fencing, and approval for all fencing must be obtained in the manner and method as set out in the foregoing paragraph, except that no fencing shall be permitted nearer to the front street line than the rear lines of the residence improvements ...

and:

SECTION IV DURATION AND ENFORCEMENT

These restrictions and covenants are to run with the land and shall be binding on all parties and all persons claiming under them until January 1, 2000 ...

Each of the restrictions and covenants herein set forth shall run with the land and bind the present owners, its successors and assigns and all parties claiming by, through or under them shall be taken to hold, agree and covenant with the owner of said tract, to conform to and observe said restrictions and covenants. The owner or owners of any portion of the above lands shall have the right to sue for and obtain an injunction, prohibitive or mandatory, to prevent the breach of or to enforce the observance of the restrictions and covenants above set forth, in addition to the ordinary legal action for damages ...

Although the Christiansens later filed identical restrictions covering Lots 64-84, lands adjacent to the tract at issue, they filed neither a master plat nor one master set of restrictions.

At the hearing evidence was presented to establish the fact that when the Caseys purchased Lot 5 in 1979 from a builder other than the developer they had actual knowledge of the restrictions. Indeed, in June, 1979 the Caseys, in accordance with section II of the restrictions, submitted a plan for a swimming pool to Mr. Christiansen for his approval. Following a procedure used for the purpose of dealing with such requests, Christiansen noted in ink on the plan that a chain link fence was to be placed on the perimeter of the lot and stamped his approval.

The Christiansens were out of town during the time of the construction of the fence. When they returned, they discovered that the Caseys had completed a wooden fence placed not at the property line but two feet inside the line. On August 17, 1979, the Christiansens filed this action.

The trial court in its judgment entry of December 7, 1979, found the evidence to be "conclusive that the defendants are in violation of the Declaration of the Restrictions and that they are obligated to follow those declarations, as land owners, even though not signatory to said Declarations." While noting that the "Declarations prohibit the erection of the type fence herein involved, except one approved by the developer, i. e., the Plaintiffs", the trial court found that "a reading of the entire document" led it to believe that the language in section IV vests the right to seek enforcement only in "fee simple title holders".

In this case there is no dispute as to the facts. The Caseys are clearly in violation of the restrictive covenants; the Christiansens no longer own land in the restricted tract. The only issue is the propriety of the court's dismissal under the facts. In other words, how will the transfer of an original grantor's interest in land affect his continued rights? We hold that under the facts of this case the grantor being the promisee of the covenantor may hold the grantee-covenantor to his promise. That would seem to be especially compelling when an additional ground of the grantor's claim for relief is that he holds nearby land which, although not under the umbrella of the restrictions, may be materially affected by the violation of the restrictions. Doerr v. Cobbs, 146 Mo.App. 342, 123 S.W. 547 (1909).

Missouri courts have long held to the principles that "the law favors the free and untrammeled use of property" and that "when there is substantial doubt as to the wording of the meaning of any restriction, such doubt should be resolved in the favor of free use of any property". Steve Vogli & Co. v. Lane, 405 S.W.2d 885 (Mo.1966). In the instant case, however, no controversy exists as to the meaning of the restrictions as they relate to the kind of fence that may be constructed or the place where the fence is to be located. Although the Caseys refer to and rely upon the policy of law which favors the untrammeled use of property, in fact, they do not claim that these restrictions are unreasonable or unduly burden the use of their property. Nor do they claim lack of notice. Such matters are not in issue in this case. The Caseys merely claim that their promise to the Christiansens is no longer enforceable by the Christiansens.

Missouri's Supreme Court in Kerrick v. Schoenberg, 328 S.W.2d 595 (Mo.1959), defined a real covenant at 600 as

one having for its object something annexed to, inherent in, or connected with, land or other real property one which relates to, touches, or concerns, the land granted or demised and the occupation or enjoyment thereof. A covenant is viewed as real in nature, or one that runs with the land, when either the liability to perform the duties therein enumerated or the right to take advantage thereof passes to the assignee of the land.

However, a promise made to the grantor becomes a personal covenant, or benefit in gross, when the covenantor remains liable to the grantor after the grantor has divested himself of the benefited land. See 2 American Law of Property § 9.32 (A. J. Casner ed. 1952).

If the plaintiff still owns land that is benefited by the agreement, courts generally have no difficulty in finding the restriction to be a real covenant and the plaintiff to have standing to enforce. But, if the plaintiff no longer owns the benefited property courts find that the covenant is personal rather than real. The question of the standing of an original grantor to sue a covenantee on a personal covenant is an open one in the United States. ¹

In 1973 the court in Hall v. American Oil Co., 504 S.W.2d 313 (Mo.App.), at 316, note 3, declined the "adventure of a full discussion on equitable servitudes and restrictive covenants", but held at 317 that if the restrictive covenant "is ultimately determined to be valid", distinction between real and personal covenants...