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Daily Development for
By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,
prandolph@cctr.umkc.edu
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
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 (
2001)
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
Items reported here and in the
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