Section 6.25 Restrictive Covenants

• Library: Local Government Deskbook (2017 Ed.)

A. (§6.25) Restrictive Covenants

Another traditional means of exerting control over land use and development outside the scope of local government regulation is through the use of restrictive covenants. These restrictions commonly take two forms. First, there are deed restrictions by which the vendor limits the uses to which conveyed property may be devoted. Virdon v. Horn, 711 S.W.2d 205 (Mo. App. S.D. 1986). A second type of restriction is the trust indenture. Generally found in residential subdivisions, these are agreements among property owners that:

restrict uses;

allocate common expenses; and

enforce building standards within the subdivision for the benefit of all owners.

Lake Sherwood Estates Ass’n v. Cont’l Bank & Trust Co., 677 S.W.2d 372 (Mo. App. E.D. 1984). Restrictive covenants may also be created by a developer by clearly including the restrictions on an accurate plat of the development that is properly recorded. Hoag v. McBride & Son Inv. Co., 967 S.W.2d 157 (Mo. App. E.D. 1998).

“Real” restrictive covenants are those that touch and concern, or benefit, the land, as opposed to mere “personal” covenants or promises made by a grantor. These real covenants are said to “run with the land” and are, therefore, binding on subsequent owners. Lake Wauwanoka, Inc. v. Spain, 622 S.W.2d 309, 312, n.6 (Mo. App. E.D. 1981). Restrictive covenants are deemed to be in derogation of property rights and are, therefore, strictly construed. Virdon, 711 S.W.2d 205. For example, in Blevins v. Barry-Lawrence County Ass’n for Retarded Citizens, 707 S.W.2d 407 (Mo. banc 1986), the Supreme Court held that a restriction for single-family residences applied only to the structure itself and not to the use of it, thus allowing a residential group home for individuals with disabilities to continue its operation despite objections from adjoining property owners.

A provision in a subdivision restriction that no property in the subdivision “shall be sold” to anyone unless the purchaser was approved by the trustees of the subdivision, while recognized as a restraint on alienation, was held valid, and the relevant inquiry is whether the trustees’ refusal to approve the sale was reasonable. Forst v. Bohlman, 870 S.W.2d 442 (Mo. App. E.D. 1994).

A church parking lot was held not to violate a restrictive covenant that “[n]o lot shall be used except for residential purposes.” Fitzwilliam v. Wesley United Methodist Church, 882 S.W.2d 343, 344 (Mo. App. W.D. 1994).

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