The following words and phrases come from the Quarterly Reports published through the ABA Section on Real Property, Probate & Trust Law.  These reports include all DD's and about three times more cases, and sometimes update readers on recent literature and state legislation. The Report for Summer, 2002, is currently being printed, and you probably can get on the subscription list if you act immediately.  ABA Section members can subscribe to this Report.   Contact Antonette Smith at (312) 988-5260, ABA Section members also can access prior and current editions of this report on the aba rppt section website.


Daily Development for Monday, October 21, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of
UMKC School
of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,


WORDS AND PHASES; "ADDITION:" A garage connected to a home by stairs and a wooden walkway is an "addition" to residential property within the meaning of the mechanic's lien law imposing special lien restrictions for work on "residential property."  Concrete Co. of the Ozarks v. Reeder, SD No. 24433 (Mo. Ct. App. 2002).


Defendants paid their contractor in full for constructing a garage on their property, which was connected to their home by  stairs and a wooden walkway.  However, the contractor did not pay the subcontractor who performed the concrete work.  The subcontractor then sued the contractor and also sought a mechanic's lien against the residential property.  The Court of Appeals upheld the judgment entered below against the contractor.  The court refused,  however, to allow a mechanic's lien against the property, citing Section 429.013, RSMo, which prohibits the imposition of mechanic's liens upon residential property without the written consent of the owner if the proposed lien arises out of "repairs, remodeling or additions" to the residential property.


The Legislature had amended this special exception provision in the mechanic's lien chapter to to provide that it did not apply to new construction of residential property, but only to "repairs, remodeling or additions" or existing residential property.


Here, it was clear that the garage did not constitute repairs or remodeling to the existing home, because no changes were actually made to the residential structure on the property.  However, the defendant homeowners argued that the garage was an "addition," because it was connected to the house by stairs and a wooden walkway.  The court agreed, citing to the Black's Law Dictionary definition of "addition":

"something added to another," a "[s]tructure physically attached to or connected with a building," an "[e]xtension," "augmentation," or that "which has become united with or a part of."


Comment 1: Of course, it was not necessary for the court to deal with what happens if the garage is free standing, but the editor would view such a structure as also within the clear policy of the statute to protect homeowners from unconsented liens by subcontractors as to home improvement construction projects.  The construction of a garage serving an existing residence falls within the statutory intent, even though the statute excludes the construction of a new residence.


Comment 2:  An interesting issue would arise if the garage was used for business purposes exclusively, but was physically attached to the residence.  In light of the court's focus on physical connection, it is possible that such a construction would fall within the mechanic's lien exception, while a free standing "real" garage might not.


WORDS AND PHRASES; 'GARAGE:"  Where a covenant limits a building's use to that of a garage, a structure which is used or is readily susceptible to being used for some purpose other than as a garage is prohibited.   Steiger v. Lenoci, 352 N.J. Super. 90, 799 A.2d 656 (App.

Div. 2002).


A restrictive covenant provided "[t]hat no outbuilding of any kind or character, other than a garage for not more than three cars, shall be erected upon any lot or plot, which said garage shall be used only as a private garage incidental to the dwelling on the same plot, or may be connected with the dwelling and shall in any event be of a design in keeping with the design of the dwelling... ."


The property owner constructed a pool cabana.  A court  in an earlier court action ordered its removal because it was   in violation of the restrictive covenant.  The owner demolished the cabana and then built a new structure described as a "garage" on the same footprint.  It included "not only an area for the storage of cars but also a large adjoining area for the storage of other personal items and a 'powder room' with a toilet, sink and vanity."  It also had sliding glass doors which led to an outdoor patio adjoining the swimming pool.  The structure included hot and cold running water, a sump pump, and a heating system.


The same neighbors that brought the first action sued again, but this time the lower court concluded that the new structure was a "garage" and therefore not prohibited by the restrictive covenant.  The Appellate Division disagreed, believing that the "garage" exception to the general prohibition against "outbuildings" was intended to be limited.  Although the covenant did not contain a definition of "garage," it stated that any "garage shall be used only as a private garage incidental to the dwelling."



Therefore, according to the Court, "a structure which is used or is readily susceptible to being used for some purpose other than as a garage [was] prohibited."  Therefore, it didn't matter that the structure could be used for the storage of motor vehicles because the other sections were not required for that purpose and were readily susceptible to a variety of other uses.  The restrictive covenant clearly precluded the construction of a free-standing storage facility or bathroom and the property could not avoid that prohibition "by simply incorporating a storage facility or bathroom in the same structure as the garage."


WORDS AND PHRASES; "GROSS FLOOR AREA:"    The construction of a zoning bylaw to define gross floor area as not including staircases and attics is a "reasonable construction" of the term.  Cameron v. DiVirgilio 768 N.E.2d 1094 (Mass.App.Ct. 2002). , discussed under the heading: "Zoning and Land Use; Procedure; Decision."


See other report under the identified heading for the facts and other issues. Appellants' final claim was that the special permit conflicted with the Town of Amherst's zoning by-laws because the gross floor area ("GFA") of the supplemental apartment would exceed the 600 foot maximum, if it the calculation thereof were to include, as the Appellants urged should have been the case, either the square footage of the staircase or of the attic.  The Amherst zoning by-laws did not define "GFA", and the Board interpreted GFA to mean habitable space, thus not requiring the inclusion of attic or staircase square footage in any calculations.  The appeals court noted that "the reasonable construction that a zoning board of appeals gives to the by-laws it is charged with implementing is entitled to deference," and  found that the Board's interpretation in the case at hand was "entirely reasonable."  The appeals court affirmed the judgment of the lower court


WORDS AND PHRASES; "MOBILE HOMES:"   A home that is "modular" or "manufactured" rather than "mobile" does not violate a restrictive covenant against "mobile homes" in a housing subdivision.

Howell v. Hawk & Snell v. Russell Long, 750 N.E. 2d 452 (Ind. App.



The court invoked Indiana's common law presumption against restrictive covenants, ruling that they should be strictly construed, and that, in case of doubt, they should be interpreted in favor of free use.   The manufactured  home in question was permanently affixed to the ground, and did not have wheels or a metal chassis underneath.  It looked like other homes in the subdivision, including modular homes that had been permitted.


Despite all of the above, the court did have trouble finally concluding that this was not a mobile home.  In the end, it decided to rely upon the meaning of the concept in 1972, when the covenant was drafted.  At that time, it concluded, the term "mobile home" meant a " vehicle. . . so constructed as to permit its being used a s a conveyance upon public streets or highways . . . having no foundation other than wheels, jacks, skirting or other temporary support."


Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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 six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or

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