Hamrick v. Herrera

• Decision Date: 01 December 1987
• Docket Number: No. WD,WD
• Citation: 744 S.W.2d 458
• Parties: Lloyd A. HAMRICK, and Mildred C. Hamrick, Respondents, v. Rick M. HERRERA and Susan Carroll Herrera, Appellants. 39138.
• Court: Missouri Court of Appeals

Page 458

744 S.W.2d 458

Lloyd A. HAMRICK, and Mildred C. Hamrick, Respondents, v. Rick M. HERRERA and Susan Carroll Herrera, Appellants.

No. WD 39138.

Missouri Court of Appeals,

Western District.

Dec. 1, 1987.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 2, 1988.

David H. Cook, Independence, for appellants.

Russell D. Jacobson, A. Morgan Hickenlooper, Kansas City, for respondents.

Before CLARK, P.J., and TURNAGE and MANFORD, JJ.

CLARK, Presiding Judge.

Appellants and respondents are the owners of adjoining lots in a Kansas City residential subdivision. On the petition of respondents, and after a bench trial, the court ordered appellants to remove a partially completed, detached structure appurtenant to their residence and also permanently enjoined appellants from erecting any similar structure. The issues on appeal are whether a declaration of restrictions in the subdivision governs appellants' use of their property and whether the local homes association is a successor to the restriction declarant under those restrictions. We answer those questions in the affirmative and therefore affirm the judgment.

The controversy in the case originated when appellants commenced building a detached structure in the side yard between their residence and the residence of respondents. The latter protested that the structure, intended as a children's playhouse, was in violation of restrictions in the subdivision prohibiting erection of outbuildings without prior consent and approval of the structure. When appellants persisted in continuing construction, respondents sought and obtained a temporary restraining order and thereafter, a preliminary injunction. After trial, the injunction was made permanent.

The threshold question confronting the trial court was whether the restrictions upon which respondents relied as the ground for their protest were applicable to appellants' property. To explore that subject, it is necessary to retrace the platting of the subdivision within which these properties lie and to examine the documents filed.

The residences the parties own are located in a development known as Blue Hills East. As platted by the developer, Blue Hills East, Inc., the lots front on a single street, 125th Street Terrace, which ends in a cul-de-sac. The plat of these lots was filed December 2, 1971 and, at the same time, ¹ the developer filed a declaration of restrictions. Included was a restriction prohibiting outbuildings in the following language:

Section 6.

Outbuildings Prohibited. No outbuildings or other detached structure appurtenant to the residence may be erected on any of said lots without the consent in writing of BLUE HILLS EAST, INC.

Appellants acquired their property from Blue Hills East, Inc., by deed in August, 1975. The deed made no reference to restrictions in specific or general terms. A commitment for title insurance and the policy of owner's title insurance delivered to appellants did, however, show the December 2, 1971 restrictions, and an earlier declaration of restrictions filed in February, 1971, as exceptions to the fee simple ownership of appellants.

The court in its judgment ordering the permanent injunction found that the declaration of restrictions was applicable to appellants' property and that appellants were in violation of the restrictions by their attempt to erect an outbuilding. Appellants first contend that the finding was in error because appellants had no notice of the restrictions. The contention is more than a mere claim of the lack of actual notice. Appellants argue that the declaration of restrictions actually is not effective as to any lot in the subdivision because the declaration itself contained no legal description of the property to which it was applicable, it made no reference to the plat of Blue Hills East or any numbered lot and did not refer to any other document which would disclose that information.

Some history of the Blue Hills East development is appropriate. In 1969, Blue Hills Land, Ltd., acquired a substantial tract of acreage, designated at the time as Tract I and Tract II. On February 17, 1971, Blue Hills Land, Ltd., filed a declaration of restrictions which designated the west half of Tract I and two "peninsula" areas of Tract II as reserved for single family residences. The two peninsula areas were so described because they were separated from each other by projections of the Blue Hills Country Club golf course.

Blue Hills Land, Ltd., subsequently conveyed Tract II to Blue Hills East, Inc., and the latter subdivided the peninsula areas as Blue Hills East. The first plat, containing twenty-seven lots on 125th Street Terrace, was filed December 2, 1971. The second plat involving the second peninsula area was filed in March, 1977. Appellants' and respondents' properties lie within the first plat, Lots 22, 23 and 24.

The declaration of restrictions filed by Blue Hills East, Inc., supplementing the earlier restrictions filed by Blue Hills Land, Ltd., was recorded, as noted above, concurrently with the filing of the plat. It indicated the restrictions were applicable to "Blue Hills East, Unit No. 1." Appellants first argue that this language, which contains no reference to any lots and contains the term, "Unit No. 1," not appearing in the plat of Blue Hills East, is insufficient to bind subsequent owners of any lots in the Blue Hills East subdivision to the constraints of the restrictions.

Restrictive covenants are strictly construed, not extended by implication and any reasonable doubt as to their meaning will be resolved in favor of the free use of the land. Weiss v. Fayant, 606 S.W.2d 440, 442 (Mo.App.1980). However these principles should never be used to defeat the plain purpose of the restriction. Id. Restrictions are considered by examining the language used in the entire instrument, not just one clause. Berkley v. Conway Partnership, 708 S.W.2d 225, 227 (Mo.App.1986). If there is no ambiguity, there is no room for construction, and effect must be given to the plain language of the instrument under consideration. Andrews v. Metropolitan Building Co., 349 Mo. 927, 933, 163 S.W.2d 1024, 1028 (1942). However, where the meaning of the restrictions is in doubt, surrounding circumstances may be considered. Berkley, 708 S.W.2d at 227. The court must inquire into the intentions of the parties to the agreement and ascertain the purpose which the parties sought to accomplish by executing the restrictions. Id.; Paddock Forest Residents Association, Inc. v. Ladue Service Corp., 613 S.W.2d 474, 477 (Mo.App.1981). The clear intention of the covenantor should govern. Newmark v. L & R Development Corp., 615 S.W.2d 118, 119 (Mo.App.1981).

This was a court tried case and therefore the judgment must be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We look, then, to determine what evidence was presented indicating the intention and purpose of Blue Hills East, Inc., in executing the declaration of restrictions at issue here.

The declaration of restrictions was filed sequentially with the filing of the Blue Hills East first plat and both were executed by the same grantor. At the time these documents were filed no other subdivision bearing the title Blue Hills East was in existence. The restrictions conformed to the prior restrictions applicable to Tract II as recorded by Blue Hills Land, Ltd., and furthered the purpose of developing a limited use residential area. Expert testimony established that the term, "Unit No. 1," is a clerical distinction between plats of the same root subdivision. The necessity for such a distinction in the case of Blue Hills East is confirmed by the subsequent recording of the second Blue Hills East plat for the other peninsula area, and by reference in the restrictions filed with that plat to the subdivision known as Blue Hills East, Unit No. 1.

Irrespective of the failure in the restriction declaration to designate specifically Lots 1 through 27, Blue Hills East, as the land to which the restrictions applied, if it may be concluded that the intention of the declarant was to subject that land to the restrictions, that intention will control. The evidence summarized above was sufficient to support a finding of such intent. That was the judgment of the trial court and it did not err in so finding.

Appellants next contend that even if the restrictions are found to have been intended as restrictions upon their land, they are not bound because they had no notice of the restrictions. The point cannot be sustained because appellants were shown to have had constructive or actual notice of the restrictions, or both.

There was no question that the declaration of restrictions pertaining to the first plat of Blue Hills East was recorded in the manner prescribed by statute. It is established by ancient, but viable, authority that a purchaser is bound with constructive notice of all recorded instruments and the recitals therein lying within the chain of title. Basore v. Johnson, 689 S.W.2d 103, 109 (Mo.App.1985); § 442.390, RSMo 1986. The restrictions in issue were within appellants' chain of title, at least to the extent that they referred to a subdivision identified as Blue Hills East. That identification was subject to the deficiencies discussed in the previous section of this opinion. The evidence also showed, however, that the grantor-grantee indexes in the office of the recorder of deeds indicated that the subject restrictions applied to Lots 1 through 27, Blue Hills East, and the policy of title insurance issued to appellants showed the restrictions applicable to this...