Linn county kansas district court records
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In essence, they argue that the test to be employed is whether a valid ordinance could be passed prohibiting the conduct proscribed in the restrictive covenant. If the answer is no, then the covenant cannot be enforced. This rationale would effectively bar enforcement of virtually any restrictive covenant, including agreements as to architectural style, residence size, fencing, etc.
We believe this is an overly broad interpretation of Shelley. The factual background in Shelley is important. The Shelleys were black people who had purchased property subject to the restrictive covenant. Other landowners brought an action to divest the Shelleys of their title and return it to the seller. The Shelleys had no prior actual knowledge of the restrictive covenant. Shelley, U. The thrust of the Shelley opinion is that enforcement of the covenant would defeat the Shelleys' civil rights to own property based solely upon their race. Enforcement of this particular covenant was held to be state action infringing upon the Shelleys' constitutional right to own property.
The case before us is easily distinguished. The covenant in question places a limitation on the use of the property by the landowners. We conclude the district court erred in entering summary judgment herein on constitutional grounds. The case should be tried on its merits. All relevant facts and circumstances should be considered by the district court in determining whether or not equitable relief should be granted enforcing the restrictive covenant as to the particular sign at issue herein.
The judgment of the Court of Appeals is affirmed.
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The judgment of the district court is reversed. Brockway Receive free daily summaries of new opinions from the Kansas Supreme Court.
Linn County Schools Bibliography - Kansas Historical Society
Enter your email. Brockway Annotate this Case. Opinion filed January 17, Tulk v. Moxhay, 2 Ph. Black, 39 Kan. Restrictions or equitable servitudes are based on the equitable principle of notice whereby a person who takes land with notice of a restriction upon it will not be permitted to act in violation of it. Hecht v. Stephens, Kan.
Morris, Kan. The use of equity to enforce covenants restricting the use of property is not absolute, and the right may be lost by laches, waiver or acquiescence in the violation of such restrictions.
Dodge Corp. Calderwood, Kan.
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Clark v. Vaughan, Kan.
Absent manifest abuse of that discretion, an appellate court will not interfere. A number of factors may be considered including, but not limited to, the purpose for which the restrictions were imposed, the location of the restriction violations, the type of violations which have occurred, and the unexpired term of the restrictions.
Such restrictions are enforceable through the equitable remedy of injunction. Mere acquiescence will not bar enforcement so long as a restriction remains of any value or absent a showing that it would be inequitable to enforce the restriction.