by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

SERVITUDES; COVENANTS; RENEWAL: Where a subdivision's restrictive covenants are stated to be binding for 30 years and then automatically extended for successive periods of ten years "unless the then owners of a majority of the lots . . . shall, before the expiration of said original term or any extension thereof . . . change or modify" the covenants, amendments adopted by a majority of the homeowners are not effective until the expiration of the original or renewal period in which they are adopted. Pearce v. Scarcello, 920 S.W.2d 643 (Mo. App. 1996)

The subdivision covenant required wooden shingles on all houses. A majority of the homeowners determined that they no longer desired that such a requirement exist, and voted to amend the covenant. They replaced their shingles with non-wooden materials. A homeowner sued to enforce the covenant.

The court construed the amending language to mean that any amendment adopted by the lot owners during the first 30 years would not take effect until the end of the 30-year period; and any amendment adopted during any subsequent ten-year period would likewise not take effect until the end of the period. The court ordered the non-conforming homeowners to replace their shingles.

Comment: Provisions such as those that exist here are common in subdivisions throughout the country. The court's opinion is a useful interpretation of this language. Whether it is a good interpretation, of course, depends upon where one sits at the table. Clearly the homeowners who felt that they had some protection from the existing covenants get that protection. But the subdivision is deprived of flexibility that could be critical to its survival. Frequently, for instance, old subdivision ordinances have inadequate limits on assessments used to maintain neighborhood association-owned assets such as parks, gardens and recreational facilities. The value of money changes over 30 years, even over 10 years, and what struck the original homeowners as a reasonable assessment limitation now condemns the neighborhood to penury, thereby endangering the investment for all.

Lawyers writing modern association covenants should provide for reasonable and rationale means of updating the provisions as times change. Perhaps supermajorities are necessary in some instances, but it is the rare association that ought to be compelled to live with an unchanged regime for 30 years.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233.

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.