Daily Development for
Monday, June 08, 1998

By: Ira Meislik

Daily Developments normally are edited and prepared by Prof. Patrick A. Randolph, who is in China until late July. Ira Meislik will file periodic developments reports in Professor Randolph's absence.

SERVITUDES; RESTRICTIVE COVENANTS; BUILDING RESTRICTIONS; USE RESTRICTIONS: Restrictive covenant precluding construction of any building on parcel other than a "dwelling house" did not preclude developer of shopping mall from constructing a commercial driveway, retaining wall, lights, and illuminated signs on the disputed parcel.

Richman v. Mosites, 704 A.2d 655 (Pa.Super. 1997).

A shopping center developer planned to build its project on an assemblage of land that included a "restricted" parcel of about two acres in size. The chain of title to the restricted parcel provided that "no buildings, other than one dwelling house and private garage shall be erected upon the within described premises."

Despite this restriction of record, the property owner, a shopping center developer, planned to build the following items on the parcel, which was part of a : a four-lane driveway, a retaining wall, an illuminated sign, light fixtures, and storm sewers. A neighboring property owner sought to stop the developer by alleging, among other things, that such improvements would violate the recorded restrictions.

The Court disagreed. In its view, the restrictive covenant was a "building" restriction. Citing prior case law, it then opined that such a restriction concerned itself only with the physical aspects of a building, and did not comprise a "use" restriction. Therefore the purposes for which the disputed parcel could be used were irrelevant. In its view, "buildings" is a much narrower term than "structures." Therefore, while a driveway, retaining wall, sign, light fixtures, and a storm sewer might constitute structures, they do not constitute a "building." Consequently, construction of those improvements was found not to be violative the restrictive covenant.

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 Stacy Woodward at the ABA. (312) 988 5260 or woodwars@staff.abanet.org

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