Daily Development for Monday, February 17. 2003
By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
Note that we have two items relating to the same case here:
SERVITUDES; ENFORCEMENT; INJUNCTION: "Irreparable
Harm" standard need not be satisfied to enforce land use covenant.
Chestnut Real Estate Partnership v. Huber, 811 A. 2d 389 (Md. 2002)
This dispute arises out of the ashes of an earlier dispute,
which apparently had been resolved in a form of "contract zoning." Developers
had been permitted to develop the subject property as part of a
"continuing care" facility but had executed a covenant, enforceable
by neighboring landowners, controlling the size and rate of expansion of the
care facility. The relevant portion of
that covenant stated, as to the subject parcel, that the parcel:
". . . shall remain as open
space and shall be used solely for recreation, golf holes, non lighted tennis
courts or similar recreational activities for the exclusive use of the
residents of the community and their guests for a period of fifty years from
the date of the Agreement. The parties
agree that [this parcel] shall not be subdivided ans
shall be used only in conjunction with the use authorized for [the rest of the
subject property] during that period. It
is further agreed that there will be no parking permitted, no buildings nor
structures nor paving of any sort constructed . . . or permitted other than [as
prior agreed]. The parties further agree
that there shall be no lighting of any of the activities permitted on [this
parcel]"
Pretty clear, huh? Not to the developers, who proceeded to
construct a "garden shed" on the property, arguing that this use was
ancillary to the overall residential use of the community and therefore not
prohibited by the restriction. They lost
that one of course. (Notice where the covenant says "no
buildings or structures?")
Failing at that argument, the developers argued that the
lower court should not have enjoined the and order
removal of the shed because of the trial judge's failure to find
"irreparable harm" would result to those protected by the
covenant. Although the Maryland Court of
Appeals acknowledged that this is the general requirement for injunctive
relief, it not ought to be the standard for land use restrictive covenants when
the covenant has been wilfully violated:
"While the "irreparable harm" requirement is
generally an indispensable prerequisite for injunctive relief, "when there
is a willful and unlawful invasion of plaintiff's right, against his protest
and remonstrance, the injury being a continuing one, a mandatory injunction may
be granted in the first instance."
The court further analogized to the remedy of specific
enforcement of a contract, which is routinely granted where damages are
inadequate, regardless of a showing of irreparable harm. Finally, the court held,
that where an act complained of is such that by its repetition or continuance
it may become the foundation of a claim of adverse or presciptive
rights, that alone could support the issuance of an injunction although no
actual or substantive injury be shown.
The court went on to particularly designate land use
covenants as exempt from the requirement for a showing of irreparable
harm. Quoting from a Florida case, it
stated:
"It is the theory of the law that every piece of land
has a peculiar value, infringement of which is not readily remedial by
assessment of damages of law . . . And where the facts are clear and
undisputed, the court by means of a mandatory injunction may compel the undoing
of a thing already done in violation of such covenants."
Comment 1: Note that
the court stops short of saying that the court will not look for
"irreparable harm" even when there has been an inadvertant
and unknowing violation of a covenant.
Nevertheless, it emphasizes at several points that the defendant in a
covenant situation is on constructive notice of such covenants. (Here, there apparently was so much
"fuss and feathers" that there could be no question that the building
of the shed would be challenged."
Comment 2: In the editor's experience, even if courts do
view the "irreparable injury" standard as relevant, they note that
the damage to the neighboring property need not be tangible or measurable in
money damages. The covenants often are
designed to create a certain atmosphere within the community, and if the
challenged activity will have an impact on that, or will encourage others to
duplicate the activity, and thus add to a collective impact, the community has an
interest worth protecting.
Comment 3: There may still be some cases in which a court
would have difficulty awarding an injunction.
For instance, in one California case, the covenant contained a
prohibition against satellite dishes (at a time prior to the preemptive federal
recognition of rights to maintain such installations - but also at a time when
the dishes were ten feet across.) A
resident constructed a dish in his fenced back yard and landscaped in such a way
that it was
invisible to from outside the property.
The judge refused to apply the architectural restrictions in the
community against the dish on the basis that they were "unreasonable"
in prohibiting all dishes at all times.
Subsequent California common law has rejected the notion
that the "reasonableness" test can be applied in reviewing covenants,
but in the editor's view this would have been a good case for a court to
consider denying injunctive relief.
Comment 4: Unfortunately, one of the standards that often is applied is whether the violation of the covenant is
"willful." Often, if the
landowner believes that the covenant in question is being unreasonably applied,
the only practical course of action is to violate the covenant and then defend
a suit for injunction. To apply for declaratory
relief in advance is unlikely to lead to a positive result. But by waiting, the defendant in the
injunction case has made an investment that could be lost while at the same
time building a case for injunction by his very defiance of the rule.
SERVITUDES; ENFORCEMENT; INJUNCTION: Fact that land use
covenant is incorporated into land use order does not necessarily lead to
requirement that party seeking to enforce it must "exhaust administrative
remedies" with public agency where intent of covenant was to confer a
private right of enforcement.
Chestnut Real Estate Partnership v. Huber, 811 A. 2d 389 (Md. 2002)