Persimmon Hill First Homes Ass'n v. Lonsdale

• Court: Kansas Court of Appeals
• Writing for the Court: GREENE, J.
• Citation: Persimmon Hill First Homes Ass'n v. Lonsdale, 31 Kan.App.2d 889, 75 P.3d 278 (Kan. App. 2003)
• Decision Date: 29 August 2003
• Docket Number: No. 89,410,89,410
• Parties: PERSIMMON HILL FIRST HOMES ASSOCIATION, Appellant, v. HOWARD and CARRIE LONSDALE, Appellees.

31 Kan.App.2d 889

75 P.3d 278

PERSIMMON HILL FIRST HOMES ASSOCIATION, Appellant, v. HOWARD and CARRIE LONSDALE, Appellees.

No. 89,410

Court of Appeals of Kansas

Opinion filed August 29, 2003.

Timothy J. Sear and Kevin J. Breer, of Polsinelli Shalton & Welte, A Professional Corporation, of Overland Park, for appellant.

No appearance by appellees.

Before JOHNSON, P.J., GREENE, J., and DAVID W. KENNEDY, District Judge, assigned.

GREENE, J.:

Persimmon Hill First Homes Association (Association) appeals from the district court's denial of its motion for a permanent mandatory injunction against homeowners Howard and Carrie Lonsdale (Londales) to enforce a restrictive covenant prohibiting fences absent Association approval, and in no event fences exceeding 4 feet in height if on a boundary line. The district court denied the requested injunctive relief solely due to a perceived failure by the Association to demonstrate irreparable injury. We reverse.

Factual and Procedural Overview

In July 1978, the developer of Persimmon Hill subdivision in Johnson County, Kansas, filed a declaration of restrictions applicable to all property in the subdivision containing, inter alia, the following covenants and provisions:

"No fence of any kind or description shall be erected on any lot unless and until the location, height and material to be used have been approved in writing by the Developer.... It is expressly provided, however, that no fence to be constructed along the boundary line of any lot shall exceed four (4) feet in height.

. . . .

"[T]he Developer and the owner or owners from time to time of any of the lots hereby restricted, 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 above set forth...."

The developer filed contemporaneously a declaration establishing the Association and delegating the nonexclusive right to enforce the restrictive covenants. Both declarations expressly provided that the covenants would "run with the land."

The Lonsdales purchased their home in the subdivision in March 1997. Mr. Lonsdale acknowledged that he was "sure that [he] was" aware upon purchase that the property was subject to certain "deed restrictions." Sometime prior to June 2001, and absent any request for approval or notification to the Association, the Lonsdales erected a fence around a portion of their property in excess of 4 feet in height. They denied any authority of the Association over their property and argued that the fence was necessary to protect their children from dogs and their hot tub from becoming an attractive nuisance. They also suggested that at least 10 other homeowners had erected fences "over the supposed four foot limit."

After the Lonsdales refused to comply with the Association's letters of demand, the Association filed its petition for permanent injunction, requesting a mandatory injunction ordering the Lonsdales to remove the offending fence within 45 days. Following discovery, the district court conducted a bench trial in the matter, and denied injunctive relief to the Association. In comments on the record at the close of the hearing, the court reasoned as follows:

"The argument was made there's going to be an economic loss due to decreasing value of properties because of the nonconforming fences. Now, if that argument was supported by the evidence, then I think the injunction would be granted. The difficulty I have with this case is I'm not persuaded that the evidence establishes that that economic loss would in fact occur and it would be an irreparable economic loss....

. . . .

"[T]he Court doesn't believe that the evidence was sufficient to establish that there is going to be a decrease in property values to this subdivision because of the nonconforming fence here in question, and accordingly, judgment's granted for the defendants...."

In its journal entry of judgment, the court stated:

"In order to prevail on a claim for injunctive relief, there must be irreparable harm to the Plaintiff if the injunctive relief is not granted. Irreparable harm means something more than measurable damages. Irreparable harm is something that is going to harm the Plaintiff in the future.

"Plaintiff has not established that there is going to be irreparable harm to it if the injunctive relief is not granted."

This appeal followed.

Standard of Review

The granting of an injunction is equitable in nature and involves the exercise of judicial discretion. Absent manifest abuse of that discretion, an appellate court generally will not interfere. Linn Valley Lakes Property Owners Ass'n v. Brockway, 250 Kan. 169, 171, 824 P.2d 948 (1992). Where an appeal frames issues of law, however, including the threshold legal requirements for injunctive relief in a specific case, a de novo standard of review applies. City of Wichita v. Meyer, 262 Kan. 534, 539, 939 P.2d 926 (1997); Sampel v. Balbernie, 20 Kan. App. 2d 527, 529, 889 P.2d 804 (1995).

Restrictive Covenants Have Traditionally Been Enforced in Kansas Absent Any Requirement for an Independent Showing of Irreparable Injury

The enforceability of restrictive covenants has its origin in common law and has long been recognized in the state of Kansas. McColm v. Stegman, 3 Kan. App. 2d 416, 419-20, 596 P.2d 167 (1979). Enforceability is based on the equitable principal of notice, whereby a person who takes land with notice of a restriction upon it will not be permitted to act in violation of that restriction. Hecht v. Stephens, 204 Kan. 559, 561-62, 464 P.2d 258 (1970). Persons who take real property with notice of restrictive covenants will not be permitted to act in violation thereof, and may be enjoined in equity. Kennedy v. Classic Designs, Inc., 239 Kan. 540, Syl. ¶ 2, 722 P.2d 504 (1986).

Kansas case law has recognized at least three general equitable defenses to the enforceability of restrictive covenants: (i) the right may be lost by laches, waiver, or acquiescence in the violation of such restrictions, N. P. Dodge Corp. v. Calderwood, 151 Kan. 978, 980-81, 101 P.2d 883 (1940); (ii) enforceability may be denied when there has been a change in conditions so radical in nature as to neutralize the benefits of the restrictions and destroy their purpose, South Shore Homes Ass'n v. Holland Holiday's, 219 Kan. 744, Syl. ¶ 4, 549 P.2d 1035 (1976); and (iii) enforceability may be denied if contrary to the public interest. Board of Reno County Comm'rs v. Asset Mgmt. & Marketing L.L.C., 28 Kan. App. 2d 501, 506, 28 P.3d 436 (2001).

Despite a plethora of cases discussing injunctive relief for violation of restrictive covenants, we are unaware of any expressed requirement of an independent showing of irreparable injury in this context. See City of Wichita, 262 Kan. 534; Linn Valley, 250 Kan. 169; Kennedy, 239 Kan. 540; Hecht, 204 Kan. 559; N.P. Dodge, 151 Kan. 978; South Shore Homes, 219 Kan. at 744; McDonald v. Emporia-Lyon County Jt. Bd of Zoning Appeals, 10 Kan. App. 2d 235, 697 P.2d 69 (1985); Schartz v. D R B & M Real Estate Partnership, 5 Kan. App. 2d 625, 621 P.2d 1024 (1981); McColm, 3 Kan. App. 2d 416; Holmquist v. D-V, Inc., 1 Kan. App. 2d 291, 563 P.2d 1112 (1977). Although this court briefly discussed an irreparable injury criteria in Asset Mgmt., 28 Kan. App. 2d at 506, the case was decided on questions of public interest and the availability of inverse condemnation.

Given that the district court denied injunctive relief solely because the Association failed to independently demonstrate irreparable injury, we must address as a matter of first impression whether this showing is required by Kansas law for injunctive relief under these circumstances.

Did the District Court Err as a Matter of Law in Denying Injunctive Relief for Clear Violation of Restrictive Covenants Solely Because the Court Perceived There Was No Independent Demonstration of Irreparable Injury?

At the outset we must acknowledge the general rule that one of the four prerequisites for injunctive relief is that the movant will suffer irreparable injury unless the injunction issues. General Building Contr., L.L.C. v. Board of Shawnee County Comm'rs, 275 Kan. 525, 541, 66 P.3d 873 (2003); Wichita Wire, Inc. v. Lenox, 11 Kan. App. 2d 459, 462, 726 P.2d 287 (1986). Since our case law discussing injunctive relief for restrictive covenants has not expressly acknowledged or applied this general rule, we seek now to reconcile these cases from the restrictive covenant context with the general rules for injunctive relief in Kansas. In the context of the substantive law of restrictive covenants, courts have generally recognized that damages are irrelevant to enforceability.

"As a general rule, a restrictive covenant may be enforced irrespective of the amount of damage which would result from the breach, and even though there is no substantial monetary damage to the complainant by reason of the violation. The right to enjoin the breach of restrictive covenants does not depend upon whether the covenantee will be damaged by the breach; the mere breach is sufficient ground for interference by injunction. Thus, for example, restrictive covenants as to the nature, location, or use of buildings will

...