Section 12 Establishing Covenants

• Library: Urban Development Subdivisions, and Annexations (2011 Ed.)

Covenants may be established on subdivision plats or in the deeds to lots in the subdivision, but unless the covenants are very concise, the most desirable practice is generally to prepare a master declaration or indenture of covenants and restrictions applicable to all lots in the subdivision. The developer executes and records this master declaration before conveying any lots. The best practice is to record the restrictions before any contract to sell any lot is made. Restrictions recorded after a contract conveying a lot is executed, but before delivery of the deed, may still bind the purchaser, but in that instance the purchaser may have one or more causes of action against the developer for encumbering the title after executing the contract. Kuhs v. Kawelaske, 516 S.W.2d 309 (Mo. App. E.D. 1974). The developer could, however, reserve the right in the sales contract to impose restrictions subsequently. The landowner has a protectible property interest in a covenant that benefits the land, and the landowner's interest in a covenant cannot be terminated unless:

· the landowner voluntarily consents to the termination;

· the governmental entity institutes a proper condemnation proceeding; or

· the neighborhood is changed so significantly as to defeat the purpose of the covenant.

Hoag v. McBride & Son Inv. Co., 967 S.W.2d 157 (Mo. App. E.D. 1998).

A restrictive covenant may be waived and abandoned by a conscious acquiescence as evidenced by persistent violations of the covenant. It can also be waived by failure to object to violations of the restriction. The violation must be widespread to constitute waiver or abandonment and it must be so general as to indicate an intention or purpose to abandon the scheme intended to be maintained by the restriction.

Mackey v. Griggs, 61 S.W.3d 312, 318 (Mo. App. S.D. 2001) (citations omitted).

To establish changed conditions warranting not enforcing a restrictive covenant, "the burden rests on the defendant to prove: (1) The radical change in condition; (2) that as a result enforcement of the restrictions will work undue hardship on him; (3) and will be of no substantial benefit to the plaintiff." "No hard and fast rule can be laid down as to when changed conditions have defeated the purpose of restrictions, but it can be safely asserted the changes must be so radical as practically to destroy the essential objects and purposes of the agreement."

Country Club Dist. Homes Ass'n v. Country Club Christian Church, 118 S.W.3d 185...