710.1 
 M74u 
 
 Studies in Land Economics 
 
 Research Monograph No. i 
 Richard T. Ely, Editor 
 
 S. 
 
 c Ohe 
 
 Use of Deed Restrictions 
 
 in Subdivision 
 
 Development 
 
 By Helen C. Monchow 
 
 Published By 
 
 The Institute for Research in 
 
 Land Economics and Public Utilities 
 
 337 East Chicago Avenue 
 
 CHICAGO, ILLINOIS 
 
 1928 
 IKE LIBRARY 
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 UNlYERStir OF I! 
 
ILLINOIS HISTORICAL SURVEY 
 
 LIBRARY OF THE 
 
 UNIVERSITY OF ILLINOIS 
 
 AT URBANA-CHAMPAIGN 
 
 710.1 
 
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Digitized by the Internet Archive 
 
 in 2012 with funding from 
 
 University of Illinois Urbana-Champaign 
 
 http://www.archive.org/details/useofdeedrestricOOmonc 
 
c Uhe 
 
 Use of Deed Restrictions 
 
 in Subdivision 
 
 Development 
 
 By Helen C. Monchow 
 
 Published By 
 
 The Institute for Research in 
 
 Land Economics and Public Utilities 
 
 337 East Chicago Avenue 
 
 CHICAGO, ILLINOIS 
 
 1928 
 
COPYRIGHT 1928 
 
 BY THE 
 
 INSTITUTE FOR RESEARCH IN LAND ECONOMICS 
 
 & PUBLIC UTILITIES 
 
 CHICAGO, ILLINOIS 
 

 TABLE OF CONTENTS 
 
 Foreword ii 
 
 Author's Preface iii 
 
 Chapter I. Deed Restrictions in Controlling Land Development 1-7 
 
 II. The Developer's Plan as a Basis for Deed Restrictions 8-15 
 
 Chapter III. The Legal Aspects of Deed Restrictions 16-26 
 
 Chapter IV. Restrictive Clauses Concerning Type and Use of Structures and Lot 
 
 Area 2 7~45 
 
 Chapter V. Other Clauses Dealing with Duration, Administration and Racial Re- 
 strictions 46-71 
 
 \ Valuation of Deed Restrictions as a Control Device 7 2_ 78 
 
 Table of Dec Is Analyzed 79 
 
 Table of Cases Cited 81 
 
 Index 82 
 
 
 
 T 
 
 59541 
 
FOREWORD 
 
 With this study the Institute begins the publication of two series of research mono- 
 graphs, one in the field of Land Economics and the other in Public Utility Economics. 
 Heretofore, the results of research by members of the Institute staff have appeared in its 
 own Journal of Land and Public Utility Economics, other periodicals and books. These 
 series of research monographs form an intermediate way of publishing the results of its inves- 
 tigations. The Journal appears quarterly and carries short articles. The books that have 
 been published survey a considerably larger field. The research monographs will be media 
 for certain phases of larger research projects more ample than those covered by Journal 
 articles and yet more restricted than those in books. They will be published from time to 
 time as the material ripens rather than regularly or periodically. 
 
 Cooperative research is an established policy of the Institute. Although each individual 
 is responsible for the research work that he does, he has full opportunity to confer with 
 other members of the staff and obtain their suggestions and various points of view. The 
 result is that each publication of the Institute of whatever length represents to a certain 
 degree the combined efforts of the staff together with, in certain cases, the advice of informed 
 persons not affiliated with the staff. This monograph is no exception to this policy. 
 
 Richard T. Ely, Director, 
 Institute for Research in 
 Land Economics and Public Utilities. 
 
AUTHOR'S PREFACE 
 
 From the standpoint of controlling development the pattern of our modern cities is 
 determined largely by the activities of two groups, the realtors and the city planners. Each 
 seeks to establish through legal means the plan it has conceived for the area in question. 
 Thus city planning, zoning and subdivision control ordinances together with private con- 
 tracts in the form of deed restrictions make up the composite of control under which our 
 cities are growing up. This study of deed restrictions represents therefore only one phase 
 of the larger subject of control over the development of urban land. 
 
 approach is essentially economic rather than legal, although it has been necessary 
 - some of the legal problems and their economic significance. The purpose has 
 been to consider specific control provisions and to analyze their effect (i) upon the land actu- 
 ally covered by the deed and (2) upon the relations between the conveyor and purchaser of 
 e land, who are the parties to the contract. The broader implications of control through 
 restrictions in deeds, i. e., their effect on the city pattern as a whole, have not been con- 
 sidered. The writer has tried to keep in mind the seller and buyer of subdivision property 
 and to analyze and evaluate these control devices in the light of the relations between the 
 parties to that transaction. 
 
 A further limitation, of course, lies in the relatively small number of deeds analyzed. 
 However, the sample is fairly well scattered from the point of view of both geography and 
 time and represents a wide range of control. In securing these deeds the writer is indebted 
 to the National Association of Real Estate Boards for the use of material in its files, to Olm- 
 sted Brothers, landscape architects, for supplying a copy of the charted summary of restric- 
 tions on properties developed by them, and to the individual subdividers who sent sample 
 deeds and other materials pertaining to their subdivision activities. The writer wishes spe- 
 cially to thank Mr. Harry E. Smoot and Mr. Charles S. Ascher, who read the manuscript, 
 lose parts dealing with the legal phases, but who are in no way responsible for 
 pressed. Finally, appreciation is due various members of the Institute staff 
 who have offered valuable suggestions and counsel. 
 
 Helen C. Monchow 
 
 Chicago, Illinois 
 November, 1928 
 
 111 
 
CHAPTER I 
 
 Deed Restrictions in Controlling Land Development 
 
 CHICAGO'S open lake front in the 
 heart of the city is frequently 
 admired. Yet this stretch of land 
 >m Michigan Avenue eastward to the 
 is opposite what is nearly the most 
 valuable and intensively developed land 
 The question naturally 
 arises: How has this valuable lake front 
 )een preserved from commercial use? 
 
 : answer lies mainly in the ex- 
 istence of restrictions drawn for the 
 f the abutting property when 
 was subdivided in 1836 and 1839. 
 ♦he land between Michigan 
 Avenue and the lake was marked on the 
 "open ground, no building" and 
 "public ground forever to remain vacant 
 Since then these restric- 
 s have been attacked repeatedly but 
 unsuccessfully in the courts. In three 
 decisions 1 the courts have upheld the 
 trictions. Briefly stated, the judicial 
 easoning was (1) that the owners of 
 property are entitled to an 
 junction against the use of the park 
 for purposes other than those desig- 
 nated in the original dedication; (2) 
 :hat the restrictions apply not only to 
 area referred to in the plat 
 of the original subdivision but also to 
 the land which has been added toward 
 1 (3) that legislation cannot 
 divest a legal right set forth in the dedi- 
 cation. 
 
 ; 'ake front is an outstanding 
 
 fthe effectiveness of this type 
 
 ver land development, the 
 
 firm legal status it has attained, and the 
 
 eat influence it may exert on the 
 
 v. Ward, 169 111. 392 (1897); B/i<s 0. 
 ', 198 111. 104 (1902); Ward v. Field Museum, 
 111. 496 (19 ))■ 
 
 city pattern. In short, the example 
 shows the broader implications of restric- 
 tions on subdivision property. 
 
 To treat the wide variety of restric- 
 tions which are now being imposed on 
 subdivision developments in their larger 
 aspects, i. e., their effect on the com- 
 munity as a whole, would lead far afield. 
 The scope of this study has therefore 
 been limited to restrictions placed on 
 residential subdivision property and a 
 still further limitation will confine the 
 discussion to the effect of these restric- 
 tions on the subdivider and the original 
 purchasers of his lots. 
 
 When a lot is sold in a restricted sub- 
 division, something more than a mere 
 transfer of title takes place. This trans- 
 action, which lays down certain rules 
 with regard to the use of that land, 
 defines the relations between the sub- 
 divider and the purchaser, and fre- 
 quently between the various purchasers 
 as well. For example, a vendor may 
 stipulate in a restrictive clause placed 
 in the deeds of all lots in the subdivision 
 that residences must be set back 30 feet 
 from the lot line. The subdivider is 
 exercising the right to dispose of his 
 property as he sees fit, but he is bound 
 not to overstep certain limits set by law. 
 The lot purchasers sacrifice their right 
 to the free use of their separate lots, but 
 they gain the right of protecting the 
 benefit they derive from the restriction 
 against its violation by any of their 
 neighbors. The rights and duties which 
 are set forth in these restrictive clauses 
 are all-important. The restrictions de- 
 fine not only what an individual may or 
 or may not do with his property, but also 
 how far he may go in preventing others 
 
DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 from doing that which might damage 
 his interests. 
 
 To the economist the regulation of 
 human activities with respect to land 
 is the important aspect of deed restric- 
 tions. Land is the basis of those rela- 
 tions, and transactions involving land 
 furnish the materials for this study. 
 
 But before analyzing deed restrictions 
 in detail, it may be well to consider their 
 setting in relation to the general prob- 
 lem of controlling urban land utilization 
 and the relation of these instruments to 
 other types of control with which they 
 come in contact. The purpose of this 
 chapter, therefore, is to trace very 
 briefly the evolution of urban land regu- 
 lation, point out the need for and the 
 major purposes of such control, as well 
 as to explain the reasons for selecting 
 the subdivision field as the place for 
 studying restrictive agreements in oper- 
 ation. In other words, this chapter will 
 indicate the place of deed restrictions in 
 the developing technique of regulating 
 urban land utilization. 
 
 The field of public control of land uses 
 is a comparatively new activity in this 
 country. About a quarter century ago 
 the country suddenly awoke to the seri- 
 ous problems which had arisen from lack 
 of planning. Cities were first to show 
 symptoms of the need, and as a result 
 the development of systematic control 
 began about the turn of the century in 
 this country. 
 
 Certain isolated instances of control 
 existed prior to this time. Building 
 codes are one form of public regulation 
 which is of fairly long standing. But 
 control with respect to the planning or 
 use of the land itself lagged far behind 
 the need for it. There were exceptions, 
 however, such as the planning of the 
 Federal City under the L'Enfant Plan 
 and the planning of certain eastern 
 towns such as Philadelphia and Wil- 
 
 liamsburg, Virginia. But such develop- 
 ments were ahead of time. They cannot 
 be said actually to have been a part of 
 the general movement toward control in 
 accordance with a well-developed or 
 unified plan. 
 
 Likewise in the field of private control, 
 although from early times frequent use 
 was made of restrictions in deeds, the 
 device does not appear in its modern 
 form until comparatively recent times. 
 Properties were frequently bound by 
 restrictions, but these were employed al- 
 most wholly as prohibitory and not as reg- 
 ulatory measures. Here also, of course, 
 exceptions may be cited. As far back as 
 1749 William Penn's son drew up a set 
 of restrictions which is strikingly mod- 
 ern in some respects. He stipulated that 
 buildings must be of brick or stone; that 
 houses must conform to the regulation 
 lines of the street; that building must 
 take place within a year after purchase if 
 the lots were on the public square and 
 within two years on lots on the main 
 street beyond the square; that no 
 patents or deeds should be issued to 
 purchasers until buildings were up; and 
 that the buyers must pay a ground rent 
 of seven shillings per lot. These restric- 
 tions drawn nearly 180 years ago show 
 an attempt at what we would term 
 today a "community development." 
 
 But not until about 55 years ago did 
 a development appear which may be 
 said to be the forerunner of the modern 
 highly restricted subdivision. At River- 
 side, Illinois, 2 was developed a com- 
 munity which used the device of control 
 by deed restrictions in its modern sense. 
 Land there was sold "only to an abso- 
 lute settler who will agree to build im- 
 mediately or within one year from the 
 time of purchase, a home costing at 
 
 2 Riverside Improvement Company, Riverside, 1871, 
 Description of Improvements, Views and Buildings. 
 
 (Chicago, 1871). 
 
DEED RESTRICTIONS IN CONTROLLING LAND DEVELOPMENT 
 
 o be located thirty feet 
 
 e front of the lot line, 
 
 ■ty feet must be retained as an 
 
 iooryard." 
 
 ady stated, these are only 
 
 ces of control over land 
 
 and cannot be regarded as 
 
 'efinite movement which 
 
 5 or 30 years ago. Not 
 
 began to grow by leaps and 
 
 onscious control as a more 
 
 ed movement begin to sweep 
 
 the country. 
 
 fundamental characteristics of 
 f and modern city growth 
 have made the development of a tech- 
 of regulation essential. In the first 
 :re is the tremendous rapidity 
 rowth. The facts of urbaniza- 
 tion are familiar. The figures portray- 
 vth are easily transposed 
 into terms of more intensive as well as 
 more extensive use of the urban area. 
 The eye pictures more and taller apart- 
 ments and a constantly increasing acre- 
 age in- the process of transition from 
 agricultural to urban use. Both of these 
 )oint out the greatly enlarged 
 opportunities for the exercise of control 
 over urban expansion, particularly over 
 outlying areas which are most 
 plastic. 
 
 Secondly, modern engineering prog- 
 ress has made decentralization of our 
 From the point of view of 
 mtrol two problems are created as a 
 result of technological improvement. 
 Improved transportation has made it 
 possible for more people to have access 
 to a given area, such as the loop in Chi- 
 igo. Herein lies a problem in conges- 
 tion which requires the exercise of 
 public authority. On the other hand, 
 improved transportation has greatly ex- 
 panded the urban area. Suburban 
 growth brings with it the problem of 
 regulating development adjacent to a 
 
 city in the interests of the future ex- 
 pansion of that city, as well as problems 
 of administration arising out of the pos- 
 sibility of conflict among neighboring 
 political jurisdictions. 
 
 The third need for control is to be 
 found in the rapid rate of production 
 of urban land. It has long been sus- 
 pected that areas were being subdivided 
 and sold far in excess of demand as 
 measured by population growth. But 
 only very recently have steps been taken 
 to measure quantitatively the relation 
 between population and areas ready for 
 urban use. 3 As soon as adequate facts 
 of this nature are available, they will 
 serve as a basis for a more scientific 
 control. It should not be overlooked in 
 this connection, however, that produc- 
 tion of urban land must of necessity take 
 place to a certain extent in anticipation 
 of demand. By production of land is 
 meant the bringing of land into use for a 
 specific purpose. Production is used 
 here in the economic sense to mean the 
 creation of utilities. According to this 
 usage, production of land consists of 
 releasing the services of a given area for 
 a particular use, or changing that area 
 from one use to another. For example, 
 production of urban land consists of 
 transforming acreage (often in agricul- 
 tural use) into building lots, and urban 
 land, like most other commodities, is 
 subject to the economies of large-scale 
 production. It would be uneconomical 
 to add lots to the urban area singly or in 
 groups of two or three, whenever an 
 individual or two wanted to buy a 
 building site. Economic development of 
 urban land requires that a considerable 
 tract be purchased, subdivided and im- 
 proved as a unit. This does not alter the 
 
 3 See Orman S. Fink and Coleman Woodbury, "Area 
 Requirements of Cities in the Region of Chicago," 
 4 Journal of Land & Public Utility Economics 273-282 
 (August, 1928). 
 
DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 fact, however, that a certain balance 
 should be maintained between popula- 
 tion and expansion of the urban area, 
 and some means of public control is 
 necessary to assure a proper relationship 
 between the two. 
 
 Finally, private initiative alone is not 
 adequate to control expansion of the ur- 
 ban area. Regulations of one kind or 
 another are being applied to an increas- 
 ing number of our activities, in an at- 
 tempt to safeguard the interests of the 
 many and thus protect the institution 
 of liberty. 
 
 The conflict of interests between in- 
 dividuals or individuals and groups is 
 the reason for the increased control over 
 private initiative, and this restraint is 
 particularly necessary in transactions 
 involving land. Land has certain 
 peculiar characteristics which make reg- 
 ulation of its development all the more 
 important. Relatively land has a greater 
 fixity of investment than do other forms 
 of capital goods, a feature arising 
 chiefly from the improvements erected 
 on the land. Not only are the improve- 
 ments themselves relatively permanent, 
 but they very definitely and for a con- 
 siderable time determine the character 
 of the utilization of land. Fixed im- 
 provements, whose services extend over 
 a long period of years, make it doubly 
 necessary to see that individuals act in 
 harmony with a larger plan than that 
 dictated by their own immediate inter- 
 ests. Furthermore, these acts concern 
 not only those who commit them, but 
 their neighbors as well, for separate units 
 of land are extremely interdependent, 
 and susceptible to outside influences. 
 The erection of an inharmonious struc- 
 ture on one lot affects not only the 
 value of that particular site but the 
 adjacent ones as well, and frequently 
 the entire block. Therefore, control of. 
 one sort or another is necessary to in- 
 
 sure a desirable city pattern, and this 
 control to be effective should be ex- 
 ercised over a relatively large area and 
 in accordance with a long-time point of 
 view. 
 
 These evidences of the need for con- 
 trol may be summed up in a single 
 statement. The process of urbanization 
 has so increased the number and com- 
 plexity of the relationships arising out 
 of the use and title to urban land that 
 measures of control have become abso- 
 lutely essential to the economic function- 
 ing of urban life. 
 
 The major part of this control is 
 exercised with respect to the physical 
 development of the urban area. This is 
 true not only of deed restrictions but 
 of other forms of regulation as well. The 
 greater proportion of restrictive agree- 
 ments have to do with the type and use 
 of the structures and the use of the lot 
 area. The relationships between the 
 seller and the buyers of subdivision land 
 are expressed mainly in terms of what 
 the latter may not do in the matter of 
 building construction, lot layout, etc. 
 In other words, control as it is exercised 
 by a public or private agency consists 
 largely of regulations in the nature of 
 land planning. This fact gives a basis 
 for outlining the purposes of control in 
 planning terms. 
 
 The regulation of urban land utiliza- 
 tion has three general purposes. It aims 
 first at the prevention of waste. In this 
 connection control consists mainly in 
 planning which may prevent a great 
 many forms of useless expenditure. It 
 may prevent waste of buildings, by pro- 
 hibiting the erection of structures in 
 mapped streets. 4 These buildings would 
 
 4 Prevention of building in mapped streets is one of 
 the major problems in preserving the city plan. Con- 
 siderable difference of opinion exists as to whether the 
 more effective instrument ot control in this case is the 
 police power or eminent domain. The former is ad- 
 (Continued on page 5 
 
DEED RESTRICTIONS IN CONTROLLING LAND DEVELOPMENT 
 
 eventually have to be destroyed or else 
 would necessitate the modification of the 
 plan to a less economical arrangement, 
 prevent waste by fore- 
 i division of land into units 
 which cannot be profitably utilized. 
 Finally, planning may be a time-saver 
 by so arranging street layouts that they 
 will facilitate movement from one part 
 of the city to another. Careful planning 
 with such aims as these constitutes one 
 aspect of control. 
 
 Secondly, control seeks to stabilize 
 md, it may be, to enhance 
 land values. These results are obtained 
 through a form of restraint which es- 
 tablishes the character of a given area. 
 If an area is set aside for residential 
 purposes, its values are protected against 
 a decline which might come through the 
 manufacturing or com- 
 mercial use into that district. Control 
 s values frequently ac- 
 complishes tl end through the securing 
 of amenities. 
 
 im of control is to promote 
 
 the amenities i 1 land utilization, as well 
 
 general welfare. This 
 
 :oming increasingly im- 
 
 ad of being looked upon 
 
 dealistic and impractical, or as a 
 
 • ital goal of the uplifters, 
 
 3 be recognized as having 
 
 substantial economic value. People are 
 
 willing to pay for amenities and there- 
 
 they hav a market value which, 
 
 apart from the desirability of improving 
 
 standards, justifies the measures 
 
 taken to secure them. 
 
 of these purposes it is 
 obvious that < ontrol can best be exer- 
 
 oolnote U continued from page i) 
 
 iced in New York (New York Laws 
 c. 35). The latter, known as the 
 od, is proposed in the Standard 
 ng Act (Sees. 21-25, incl.) and has 
 California Planning Act of 1927 
 if 1927, Ch. 874, Sees. 23-25, incl.). 
 
 cised and can be most effective if ap- 
 plied when land is produced. Planning 
 is always superior to replanning and this 
 is particularly true in considering the 
 peculiar characteristics of land. It is 
 not necessary to dwell upon the obvious 
 fact that land once utilized for a given 
 purpose assumes a fairly definite char- 
 acter which is difficult and expensive to 
 change. The economic characteristics of 
 land, including fixity of investment, 
 scarcity of land of a particular class, 
 the situs element and the long-time 
 effect of any improvements on the land, 
 show how essential it is that the proper 
 utilization should be determined as 
 accurately as possible when land of a 
 certain kind is produced. 
 
 The chief commercial producers of 
 urban land in general are the sub- 
 dividers. They take acreage, subdivide 
 it and put it on the market for urban use. 
 They lay out street systems and fre- 
 quently they specify and establish 
 through the device of deed restrictions 
 the use to which the lots shall be put. 
 They definitely determine the general 
 character of the area and in so doing they 
 greatly influence the pattern of the 
 municipality. From one point of view 
 the municipality may be looked upon as 
 an aggregate of subdivisions, and there- 
 fore the activities of subdividers and the 
 methods they employ are of the first 
 importance in a consideration of the 
 control over land utilization. 
 
 The conditions under which the sub- 
 divider exercises his control vary accord- 
 ing to the location of his subdivision. 
 The relationships he establishes with 
 the purchasers of his lots are influenced 
 by the presence or absence of estab- 
 lished relationships between him and the 
 public authorities. The production of 
 residential subdivision land frequently 
 takes place outside the corporate limits 
 of a municipality or outside its jurisdic- 
 
DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 tion, and unless the tract is within the 
 jurisdiction of a region organized for 
 planning purposes, there is no public 
 control over subdivision. If, therefore, 
 the subdivider wishes to assure a cer- 
 tain character to his development, he 
 must institute his own system of regula- 
 tion, and deed restrictions are his most 
 useful instruments. However, his free- 
 dom from planning control by public 
 authority does not mean that he can be 
 totally oblivious to it. This planning 
 control often regulates the utilization of 
 land, if not directly adjoining his tract, 
 at least of land through which he has 
 access to his subdivision. He is thus 
 subject to the indirect, if not to the di- 
 rect, influences of public control. 
 
 If the subdivision is located within 
 the limits of a municipality or other 
 political unit, the subdivider is subject 
 to its jurisdiction and the rules and 
 regulations which it may impose. For 
 example, if he is operating in an area 
 which is zoned by public authority, the 
 restrictions which he imposes must be in 
 harmony with the zoning system. But 
 whether the subdivider begins his oper- 
 ations unhampered or unassisted by 
 public regulation, or whether he sets his 
 own standards, the significant point is 
 that the subdivision is the starting point 
 for both public and private control and 
 it affords excellent opportunity for con- 
 sidering the relation between the two. 
 
 As already hinted, public and private 
 control are not mutually exclusive. A 
 single piece of property may be subject 
 at the same time to both public and 
 private restrictions. While a sub- 
 divider frequently controls his develop- 
 ment through restrictive covenants in 
 conveyances, that area may also be 
 subject to regulations by some public 
 agency. Subsequently deed restrictions 
 will be compared more fully with zoning 
 ordinances as regulatory devices, and it 
 
 is pertinent here to point out only the 
 basic difference between public and 
 private control. 
 
 This difference lies in the relative 
 intensivity of their control. Public res- 
 trictions cannot be used to discriminate 
 arbitrarily between individuals. They 
 must be applicable to all persons within 
 the jurisdiction of the political unit 
 which imposes them or all persons within 
 the group regulated. Therefore, they 
 must not set requirements that are be- 
 yond the power of the economically 
 weakest members of the group to satisfy. 
 For example, a subdivision control 
 ordinance in establishing the width of 
 building lots must consider the smallest 
 income groups and set a lot-width which 
 will not result in a price prohibitory to 
 that group. In short, public control can 
 set only marginal standards. A state- 
 ment to this effect by a protagonist of 
 public control is particularly interesting: 
 
 "In directing the type of subdivision a 
 distinct limitation exists upon the power of 
 official planning, as residing in legislative 
 bodies and exercised upon the advice of 
 planning commissions. In subdivision con- 
 trol official planning usually can demand no 
 more than the obvious type of subdivision, 
 since this usually represents the average. 
 The work of a planning commission can 
 constantly tend toward establishing the 
 standards of a high type of subdivision, but 
 the mediocre subdivider will ever rest upon 
 the average in his conception of choice in the 
 exercise of property rights." 5 
 
 Subdividers who wish to establish de- 
 velopments with additional require- 
 ments must resort to private control to 
 insure this development. 
 
 A subdivision enterprise, like any 
 other organization, operates in accord- 
 ance with working rules. The transac- 
 tions of those participating in the en- 
 
 6 Hugh R. Pomeroy, "Subdivision in Relation to 
 Community Building," 3 Annals oj Real Estate Practice, 
 (Chicago: National Association ot Real Estate Boards, 
 1925) p. 268. 
 
DEED RESTRICTIONS IN CONTROLLING LAND DEVELOPMENT 
 
 7 
 
 terprise are guided not only by rules 
 which have been developed from within 
 the organization but also by certain rules 
 imposed from without. 
 
 These working rules, which govern 
 the activities of the subdivider but are 
 not of his own making, may also con- 
 veniently be divided into private and 
 public regulations. Chief among the 
 instruments of private control are the 
 restrictions contained in the deeds to the 
 property prior to the acquisition of title 
 by the subdivider. In other words, the 
 land to be subdivided may be covered 
 by restrictions inserted in previous con- 
 veyances. Such limitations are most 
 likely to be found on land in or very 
 near the city. They would seldom be a 
 factor in the development of the more 
 remote suburban subdivisions. When- 
 ever such limitations do exist, they 
 constitute a part of the working rules 
 governing the activity of the subdivider. 
 
 The working rules imposed by public 
 agencies are more frequently en- 
 countered by the subdivider. The four 
 major types of regulation, which may 
 serve as working rules for the sub- 
 divider, are building codes, zoning ordi- 
 nances, subdivision control ordinances 
 and regulations pertaining to "metes 
 and bounds" subdividing. For purposes 
 of this discussion the chief significance 
 of the first three of these forms of con- 
 trol is in the minimum standards which 
 they set for the subdivider. Building 
 
 codes set minimums for the construc- 
 tion of improvements; zoning ordinances 
 set minimums by prescribing the lowest 
 uses permissible in certain districts; 
 and subdivision control ordinances set 
 minimums for lot requirements and 
 utility installation. Regulations with 
 reference to "metes and bounds" sub- 
 dividing usually require the subdivider 
 to sell his lots from a recorded map 
 rather than by description. These forms 
 of public regulation mark the starting 
 point for control over land develop- 
 ment. 
 
 In addition to these working rules 
 imposed on the subdivider by public 
 authority, he may set up other require- 
 ments which will be binding on both 
 himself and the purchasers of his lots. 
 Regulations of this kind are usually put 
 in the form of restrictive clauses in- 
 serted in the deeds conveying the prop- 
 erty. They set forth the rights and 
 duties of both the subdivider and the 
 purchasers with respect to the land con- 
 veyed. They regulate the relationships 
 between the parties to the transfer, and 
 these are the relationships with which 
 this study is primarily concerned. The 
 increasing use of deed restrictions as a 
 means of controlling land utilization — 
 particularly residential subdivision land 
 — warrants some study of the forms this 
 type of control may take, the objects 
 it has in view and the effectiveness of 
 the device as a measure of control. 
 
CHAPTER II 
 
 The Developer's Plan as a Basis for Deed Restrictions 
 
 £{ ir T is the Realtor subdivider who is 
 really planning our cities today, 
 who is the actual city planner in 
 practice." 1 This statement is par- 
 ticularly interesting because it comes 
 from Mr. George B. Ford, a city planner 
 of wide reputation and a former president 
 of the National Conference on City 
 Planning. Subdividers take the raw 
 land, carve out a street system, parcel 
 the area into lots and through their 
 development activities stamp them with 
 a definite character. In the past, this 
 has taken place with a minimum of in- 
 terference or guidance from the neigh- 
 boring city and often without any guid- 
 ance at all. Now, although cities and 
 regions are awakening to the desira- 
 bility of controlling their outlying un- 
 developed areas, it may still be said that 
 the subdividers are in large measure 
 determining the pattern of our cities and 
 they are likely to continue to do so for 
 some time to come. Hence, the devel- 
 oper's plan for his subdivision is of far- 
 reaching significance in the develop- 
 ment of the urban area and in the use of 
 deed restrictions. 
 
 The developer's plan, as the term is 
 used here, is the scheme for the physical 
 layout of the area, including the im- 
 provements necessary to make the lots 
 ready for building purposes and indica- 
 tions of the placement and general na- 
 ture of the structures to be erected 
 thereon. In other words, developer's 
 planning consists of working out and 
 providing for the necessary details of 
 construction and regulation which will 
 
 1 "City Planning and Unbuilt Outlying Areas," 3 An- 
 nals 0/ Real Estate Practice (Chicago: National Asso- 
 ciation of Real Estate Boards, 1925), p. 247. 
 
 make possible the fulfillment of his con- 
 ception of that subdivision as a balanced 
 development. Or, as one writer has put 
 it, "Planning should be so thorough as 
 to offer an accurate outline and picture 
 of the project to be completed." 
 
 From this description of the de- 
 veloper's plan it is plain that this dis- 
 cussion is not concerned with bare sub- 
 division which consists of the mere 
 platting and staking out of lots. A dis- 
 tinction is drawn between a "sub- 
 division" and a "subdivision develop- 
 ment." The latter includes, beside the 
 parcelling of the area into building sites, 
 the preparation of those lots for use. 
 "Sale for use" and not for speculative 
 purposes is the aim of subdivision de- 
 velopment. Subdivision development 
 illustrates the broadening scope of the 
 subdivider's activity. In a carefully 
 planned subdivision the developer must 
 exercise the functions himself or secure 
 the services of a city planner, a land- 
 scape architect, an engineer and a 
 building architect. 
 
 For purposes of describing the details 
 of developer's planning it will be most 
 convenient to suppose that the plan is 
 being imposed upon an area which is not 
 within the jurisdiction of a municipality 
 or region which is exercising planning 
 control. This assumption will facilitate 
 the discussion for it permits the inclusion 
 of all the main functions which a sub- 
 divider may be called on to perform. 
 It also obviates the necessity for re- 
 peated qualifications in the form of 
 public regulation of subdivision ac- 
 tivities. 
 
 Therefore, the following description 
 of the developer's plan will be based on 
 
DEVELOPER'S PLAN AS BASIS OF RESTRICTIONS 
 
 the assumption that the subdivider is 
 responsible for the development of the 
 area. It is not a description of an actual 
 plan or a proposal for a model plan. 
 It is merely an outline of the most im- 
 portant items to be considered in plan- 
 ning a subdivision development. 
 
 The subdivider's control consists of 
 his plan for the area and the restrictions 
 which he places in his conveyances to 
 insure the fulfillment of that plan. 
 The plan is the initial step. 
 
 The first step toward careful plan- 
 ning is a thorough and painstaking sur- 
 vey of the area to be developed, includ- 
 ing contours, relief maps, air maps, etc. 
 From these sources the developer can 
 gather detailed information about his 
 subdivision — the irregularities in its 
 topography, the location of trees, monu- 
 ments, etc. The facts gleaned from such 
 surveys are necessary as a basis on which 
 to rest his plan of development. They 
 provide the data, for example, for 
 determining the drainage system, the 
 grading of streets, the proper location of 
 utility lines and sewers. A street plan 
 which is superimposed on a hilly area 
 without reference to contours is a costly 
 improvement. The same is true of a 
 plan which in the process of platting 
 and staking destroys the natural growth 
 on the land and then calls for the ex- 
 penditure of considerable sums for trees 
 and shrubbery to beautify parkways. 
 With full information on such points the 
 developer is enabled to plan his sub- 
 division more economically and more 
 attractively. He can lay out his streets 
 and utility lines in harmony with the 
 contour of the land, thus saving expense 
 and at the same time increasing the 
 attractiveness of his development. He 
 can plan his lot layout in such a way 
 as to take maximum advantage of the 
 distinctive physical features of his tract. 
 In short, let the contour dictate the plan 
 
 as far as possible, instead of trying to 
 run the plan counter to it and thus 
 creating streets and lots that are not 
 usable because the grades are too steep 
 and the expense of improvement is too 
 great. Complete surveys are therefore a 
 valuable prerequisite to the developer's 
 plan. 
 
 The survey idea should be applied 
 not only to the physical area of the sub- 
 division itself. The effect of contour of 
 the land, as well as size of the tract, on 
 the developer's plan is obvious. Not so 
 obvious but quite as important from the 
 point of view of layout is the relation of 
 the subdivision to the surrounding area, 
 which should also be determined by care- 
 ful survey. Four factors in this rela- 
 tionship may be mentioned: (i) distance 
 from the neighboring city; (2) transport 
 facilities; (3) character of the neighbor- 
 ing city; and (4) character of the pro- 
 posed development. The following para- 
 graphs will point out some of the ways 
 in which these factors influence the c'e- 
 veloper's plan for his subdivision. 
 
 The effect of the distance of the de- 
 velopment from the city of influence is 
 clear. Developments at a distance from 
 the city take on a distinctly suburban 
 character and a new kind of develop- 
 ment called "estate type" is growing in 
 popularity with certain income groups. 
 On the other hand, subdivisions nearer 
 the city are for obvious reasons cut up 
 into smaller lots and developed for dif- 
 ferent uses. But distance from the city 
 is measured not only in miles but in 
 time and price. This latter method of 
 measurement ties the distance factor to 
 the transport factor. Measurement of 
 distance in time and price has a very 
 direct bearing on the development of 
 outlying areas. 
 
 One result of the improvement of 
 transport facilities has been to bring the 
 outlying regions within the reach of the 
 
IO 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 smaller income groups whose demand for 
 home sites must be satisfied by smaller 
 lots. Lot sizes are not the only item in 
 the developer's plan to be affected by 
 this changing demand. The distribu- 
 tion of uses and the community features 
 will be markedly different as a result. 
 
 The effect of the character of the 
 neighboring city is perhaps not so obvi- 
 ous but quite as important. A plan for a 
 tract located just outside the town of 
 Harvey, Illinois, would naturally be 
 quite different from the plan for a de- 
 velopment outside of Evanston, Illinois. 
 Suppose both developments were being 
 planned for what is coming to be known 
 as the "junior executive" group. But 
 even though the same purchasing group 
 was appealed to, the plan for the de- 
 velopments would differ markedly. The 
 subdivision outside of Evanston could 
 rely upon the extensive use of Evans- 
 ton's well-developed shopping center, 
 whereas in the other area provision 
 would have to be made for more ade- 
 quate shopping facilities of the kind to 
 appeal to the tastes of the prospective 
 purchasers. 
 
 The influence of the character of the 
 proposed development upon the sub- 
 divider's planning is also plain. To 
 illustrate: community features are vastly 
 more important in a subdivision for a 
 low income group; the plans for the im- 
 provements will of course differ greatly 
 with the presence or absence of apart- 
 ment or business uses; developments for 
 the higher income groups afford oppor- 
 tunities for a greater variety of lot pat- 
 terns and block layouts. These ex- 
 amples merely suggest the close rela- 
 tionship existing between the character 
 of the proposed development and the 
 developer's plan for the physical layout 
 of the area. 
 
 These four factors, along with the 
 contour and size of the tract, are fixed 
 
 by the selection of the area to be sub- 
 divided. Together they determine the 
 developer's plan. The various items in 
 that plan will vary in number and im- 
 portance according to these general 
 characteristics of the subdivision and its 
 surroundings. Description of these fac- 
 tors also emphasizes the fact that no 
 rules-of-thumb can be applied to sub- 
 division planning. Each subdivision is a 
 problem in itself, to be worked out under 
 the influence of the conditions in the 
 region within which it lies. 
 
 The variable items in the developer's 
 plan may now be considered separately. 
 The first concern of the developer is to 
 give careful consideration to the area 
 surrounding his subdivision. His plan 
 will be affected in three major respects 
 by his surroundings: (i) His subdivision 
 forms part of a regional development. 
 He is therefore concerned with the 
 status of the surrounding land, its 
 present development or lack of it and its 
 probable future. A knowledge of the 
 region will enable him to fit his plan 
 into the whole scheme or, if need be, 
 protect his plan as far as possible 
 against deteriorating influences. (2) 
 Of particular importance are the uses of 
 the land immediately adjoining his tract. 
 Even the existence of a zoning system 
 is not absolute assurance that the sub- 
 division will not be endangered from 
 without. An adjoining development may 
 be meeting the requirements of the 
 zoning provisions and still have stand- 
 ards so low as to endanger a proposed 
 high-class development adjacent to it. 
 Then there is the possibility that the 
 tract in question might be on the verge 
 of a different utilization. This raises 
 the border problem which is one of the 
 difficulties of zoning. So whether he 
 is near a zoned area or not, the sub- 
 divider will do well to look to the pro- 
 tection of the borders of his develop- 
 
DEVELOPER'S PLAN AS BASIS OF RESTRICTIONS 
 
 ii 
 
 merit. A solution that has been tried 
 both by subdividers and by munici- 
 palities is the planning of parkways as 
 buffers between different use zones or 
 between adjoining developments. One 
 subdivider has so placed his golf course 
 as to surround his development almost 
 completely. (3) The third problem in 
 the relationship of the subdivision to 
 the surrounding area is that of street 
 connections and traffic movement. This 
 is important not merely from the point 
 of view of access to the subdivision it- 
 self but also from the point of view of 
 the movement of traffic in the entire 
 area. In the first place, the streets of 
 the new subdivision are required to con- 
 nect with existing streets without jogs. 
 This is the point on which public con- 
 trol, wherever it is exercised, is most 
 insistent. Then where the natural path 
 of major thoroughfares or arterial high- 
 ways lies through the proposed new 
 development, adequate provision should 
 be made for their extension. In this 
 way the subdivision is coordinated with 
 the radial growth of the city and the 
 plan for traffic movement in the region 
 of which it is a part. 
 
 Street plans- within the subdivision 
 fall into two groups: major streets and 
 minor streets. The former are the heavy 
 traffic streets which connect the subdivi- 
 sion with the surrounding area. These 
 streets should be relatively straight, 
 providing the most direct routes to the 
 main termini. Adequate width and 
 special construction to bear this kind of 
 traffic are the other points of importance. 
 The minor streets are the flexible ele- 
 ments in the street plan. They are 
 mainly within the subdivision and are 
 designed primarily for the service of 
 the lot owners. Width and type of con- 
 struction are important considerations, 
 largely from the point of view of econ- 
 omy. Minor streets may be relatively 
 
 narrow because one of the aims is to dis- 
 courage traffic through them in the 
 interest of more peace and quiet for the 
 lot owners and greater safety for chil- 
 dren. Naturally their construction need 
 not be so heavy nor so expensive as that 
 of the major streets. The increasing use 
 of curves and the occasional introduc- 
 tion of cul-de-sacs are adding greatly to 
 the attractiveness of the better-planned 
 subdivision. Under this heading also 
 belongs provision for alleys, lanes, foot- 
 ways, bridle paths, etc., as well as the 
 sidewalks and parkways bordering the 
 streets. The adaptation of the street 
 plan to contours has already been 
 touched upon and need only be men- 
 tioned here for the sake of emphasis. 
 
 After laying out the street plan the 
 developer turns next to the apportion- 
 ment of uses in his subdivision. In such 
 apportionment he exercises a zoning 
 power. If he is developing a purely 
 residential subdivision, the question 
 arises whether to permit apartments or 
 multi-family units of any kind. If the 
 subdivision is large, then provision for a 
 shopping center is essential. The sub- 
 divider must decide not only which of 
 these uses he will permit, but where they 
 shall be located and how much land he 
 will allocate to each type of use. The 
 location of the business area, if any, is 
 usually more or less predetermined. Its 
 natural place is at the juncture of the 
 main traffic streets in or bounding the 
 subdivision. Its amount, however, 
 should be determined with careful 
 reference to the population it will 
 serve. 
 
 Research methods are being applied 
 to this problem and are revealing the 
 relationship which exists in certain fully 
 developed areas between business front- 
 age and numbers of residents. Such 
 measurements available to the sub- 
 divider form a basis for intelligent plan- 
 
12 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 ning of business frontage. 2 Other con- 
 siderations in connection with the plat- 
 ting of business frontage are the size 
 and shape of the lots and plans for con- 
 trol of the type of buildings to be 
 erected thereon. Subdividers have 
 awakened to the knowledge that shop- 
 ping centers need not be blots upon the 
 subdivision landscape. If care is taken 
 and control exercised, the store buildings 
 may be constructed to harmonize with 
 the whole development and not impair 
 even the most exclusive subdivision. 
 
 The next step in the developer's zon- 
 ing will probably be the location of the 
 multi-family units. These too will follow 
 the major streets and boundaries of the 
 subdivision, serving as buffers for the 
 single-family residential uses which it is 
 assumed will be the main interest of the 
 subdivider. The most frequent practice 
 in a large subdivision is to place the large 
 apartments near the borders of the tract, 
 with the two- and three-family dwellings 
 next inside and the single-family res- 
 idences in the interior of the develop- 
 ment. It might be noted here that a 
 new departure in subdividing is the 
 development exclusively devoted to 
 apartment buildings. Subdivisions of 
 this variety create new problems in 
 lot layout, street planning, and improve- 
 ment installation. 
 
 The single-family residence lots will 
 be located in the most desirable sections 
 of the subdivision. In planning their 
 location the developer will seek to ex- 
 ploit to the utmost any distinctive physi- 
 cal features his tract may contain. By so 
 doing he creates amenity values, which 
 will repay him for his care in planning. 
 
 The subdivider may further use his 
 zoning powers to establish architectural 
 
 districts. Examples of this type of 
 planning are found mainly on the Pacific 
 Coast, where subdividers are pioneering 
 in architectural control. The developers 
 of Palos Verdes Estates in Los Angeles 
 County have worked out a most elabor- 
 ate system for regulating architecture. 3 
 Their method is to establish districts for 
 architecture of specified types, which are 
 defined in terms of the color of the 
 structures, their material and the type 
 of roof. Four such districts are estab- 
 lished and zoning is also involved in that 
 business lots are all located in "Type IV 
 Architecture District." The potential- 
 ities of this type of control have yet to 
 be tested. Architectural control would 
 seem to be more important in sub- 
 divisions where the lots are comparatively 
 small, for there the structures are closer 
 together and the chance for clash be- 
 tween too inharmonious types is greater. 
 After determining lot uses the devel- 
 oper plans his lot layout which, of course, 
 must be coordinated with the proposed 
 utilization of the land. Lot sizes should 
 be determined with careful attention to 
 area as well as to width and depth. On 
 single-family residence lots the aim is to 
 secure as much individuality as possible 
 without impractical layouts. Adequate 
 platting also includes the placing of 
 building lines and easements for the in- 
 stallation of the utilities and the location 
 of structures. The platting of building 
 lines is quite as important as provisions 
 for adequate lot size, for the latter may 
 go for naught if the place of the structure 
 on the lot is not regulated with reference 
 to the plat as a whole. The complexity 
 of the problem of establishing building 
 lines is reflected in the detailed character 
 of the deed restrictions covering this 
 point. 
 
 2 See Coleman Woodbury, "The Size of Retail Busi- 
 ness Districts in the Chicago Metropolitan Region," 
 4 Journal of Land & Public Utility Economics, 85-91 
 (February, 1928). 
 
 3 See Protective Restrictions, Palos Verdes Estates, 
 Los Angeles County, California. Tract 7333 and Tract 
 8652, Montemalaga. 
 
DEVELOPER'S PLAN AS BASIS OF RESTRICTIONS 
 
 13 
 
 The planning of the improvements 
 constitutes one of the most important 
 items in the developer's scheme. Im- 
 provements may be divided roughly into 
 three groups. The first improvements 
 include clearing the tract, draining it 
 and installing culverts and bridges, 
 grading the streets and curbing them, 
 and placing street signs. The second 
 group may be described as the under- 
 ground improvements which should be 
 installed before paving. This group in- 
 cludes sewer, water and gas lines and in 
 the better subdivisions electric and tele- 
 phone lines as well. In addition to pro- 
 viding for the location of these lines 
 under the streets this group also re- 
 quires plans for their connection with 
 the separate lots. To take care of this 
 point the developer's plan should in- 
 clude the mapping of an easement on the 
 rear of each lot to permit the entrance 
 of these utilities to the individual lots. 
 The third group of improvements in- 
 cludes the paving of the streets, the 
 laying of sidewalks and the planting of 
 trees. The developer's plan for these 
 improvements should give attention not 
 only to their location but also to the 
 quality of the improvements. 
 
 Finally, an adequate developer's plan 
 will provide the necessary community 
 features. School sites are among the 
 most important. Location is one major 
 consideration and ample space is the 
 other. The remaining community fea- 
 tures may be grouped under the head 
 of recreational areas. By recreational 
 areas are meant only the smaller open 
 spaces, not large tracts such as the public 
 parks in our large cities. These recrea- 
 tional areas may be public or private, 
 as the subdivider may decide. They may 
 be dedicated to the city which will then 
 maintain them or they may be desig- 
 nated for the use of the lot purchasers 
 who will be charged for their upkeep. 
 
 This point has little bearing on the 
 planning aspect. The main thing is to 
 see that adequate recreational areas are 
 provided. Considerable difference of 
 opinion exists as to what is "adequate" 
 but 10% of the gross area of the sub- 
 division is probably not too high a figure. 
 Of course, for a very small development 
 this might be excessive but the sug- 
 gestion has been made that small, 
 adjacent subdivisions might solve the 
 difficulty by joining in providing the 
 necessary recreational areas. The pro- 
 vision of these facilities is particularly 
 desirable in the subdivisions for the 
 lower income groups, but cost has been 
 supposed to make this impossible. The 
 recent researches of Mr. Robert Whit- 
 ten, however, seem to indicate that care- 
 ful planning can make these advantages 
 available for the less expensive subdivi- 
 sions. 4 
 
 In addition to the playgrounds in con- 
 nection with the schools there is need for 
 play spaces for the smaller children. 
 These areas need not be large but should 
 be comparatively numerous and so 
 placed that the children will not have to 
 go long distances or cross main traffic 
 streets to reach them. In some sub- 
 divisions this need has been filled by a 
 lot layout which is described as the 
 "interior parkway." This type of lay- 
 out is by block rather than by lot, for 
 the houses face the interior of the block 
 with their garages on the street frontage. 
 In one such development the whole 
 block is 353 feet deep and each lot owner 
 has 125 feet of lot depth for his own use, 
 the balance being developed as a park 
 for all the owners in the block. This lay- 
 out not only supplies one solution of the 
 problem of play spaces for small children 
 but also increases privacy. 
 
 4 See "A Research into the Economics of Land Sub- 
 division," School of Citizenship and Public Affairs of 
 Syracuse University and the Regional Plan of New 
 York and Its Environs, 1927. 
 
H 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Parks may serve other purposes than 
 providing play space for children. An 
 occasional open space adds to the beauty 
 of the subdivision and affords an oppor- 
 tunity for using odd-shaped pieces of 
 land that frequently occur in cutting up 
 a tract. 
 
 Golf courses are increasingly common 
 adjuncts, particularly of subdivisions 
 remote from the city. From the control 
 point of view, their usefulness as buffers 
 between the subdivision and inharmoni- 
 ous uses has already been mentioned. 
 They also preserve a large open space 
 on one or more sides of the development 
 and this is always an asset to a residential 
 district. 
 
 The developer's plan as outlined here 
 has been confined largely to a descrip- 
 tion of the physical layout of the area. 
 The purposes of such planning are to 
 secure economies in development and 
 to secure the maximum amenities that 
 can be derived from the area. Trans- 
 lated into terms of value, the subdivider 
 seeks through planning to create and pro- 
 tect land values. A third purpose of plan- 
 ning is to visualize the completed project 
 in order to be assured that the best use 
 of the property is being planned before 
 improvement actually begins. Some sub- 
 dividers even go so far as to make mini- 
 ature models of the tract, together with 
 papier mache reproductions of some of 
 the proposed improvements. Still an- 
 other method of insuring suitable devel- 
 opment is to stake out the plan roughly 
 on the ground. This permits readjust- 
 ment where change seems desirable. 
 
 According to the definition set forth 
 at the beginning of this chapter, the 
 "developer's plan" includes more than 
 the outline of the physical layout of the 
 area. An adequate plan includes a 
 scheme for the improvements to be con- 
 structed on the area, as well as detailed 
 platting. Careful planning will go for 
 
 naught, if building takes place in a hap- 
 hazard fashion and without reference to 
 a definite scheme, for the structures to 
 be built on the subdivision will deter- 
 mine in large measure the character of 
 the development. 
 
 Therefore, the subdivider seeks to 
 make certain that development shall be 
 in harmony with his platting scheme and 
 shall take place in accordance with his 
 plans for the area. To this end he draws 
 restrictions to be inserted in the deeds 
 conveying the separate parcels. In this 
 way he can insure through a legal instru- 
 ment that the open spaces he has 
 planned will be maintained, that build- 
 ings will not encroach upon his carefully 
 planned street vistas, that inharmonious 
 structures will not mar the appearance 
 of the subdivision — in short, that the 
 development will have the character 
 which he planned for it. Thus, deed 
 restrictions may be looked upon as a 
 means of crystallizing the developer's 
 plan for his subdivision. 
 
 Two general methods of imposing 
 restrictions on building lots may be 
 mentioned here. Restrictions may be 
 drawn for each lot as it is sold or re- 
 strictions may be drawn for all the lots 
 as a part of the scheme for the develop- 
 ment of the entire area. The former 
 method may be described roughly as 
 aimed to promote the interests of the 
 subdivider through more rapid turnover. 
 Piecemeal restricting is incidental to the 
 merchandising aspect of the subdivision 
 function and not to the control phase. 
 The latter method, while also in har- 
 mony with the interests of the sub- 
 divider, has the benefit of the whole area 
 as its aim. Restrictions of this class are 
 frequently filed with the plat of sub- 
 division, in which case, however, the list 
 on the plat is not a complete record of 
 the restrictions actually inserted in the 
 deeds conveying the property. The plat 
 
DEVELOPER'S PLAN AS BASIS OF RESTRICTIONS 
 
 15 
 
 usually records only those restrictions 
 that have to do with the physical devel- 
 opment of the area and does not include 
 such items as restraints on occupancy, 
 etc. However, restrictions designated 
 on a plat are recognized by the courts, 
 even though they may not be referred 
 to in the deed. In an Illinois case 5 the 
 court held that purchasers of subdivi- 
 sion lots, the plat of which contained a 
 building line, took title subject to that 
 building line, whether their deeds re- 
 ferred to the building line or not. On the 
 other hand, when restrictive clauses in 
 deeds modify the restrictions as recorded 
 on the plat, then the provisions in the 
 deed prevail. 6 
 
 For obvious reasons the piecemeal 
 method of imposing restrictions is not 
 desirable. In the first place, it is not 
 conducive to harmonious development. 
 In order to sell a certain lot the sub- 
 divider will be tempted to make a con- 
 cession to satisfy some whim of his cus- 
 tomer. For example, the privilege to 
 violate the front building line may com- 
 pletely destroy the appearance of a 
 given block. Or permission to erect an 
 apartment house on a corner lot will ruin 
 the effectiveness of restrictions drawn 
 to preserve the amenities of single- 
 family residential sites. These examples 
 will suffice to show the unsatisfactory 
 nature of piecemeal restrictions. As a 
 method of control their usefulness is 
 questionable. 
 
 However, one argument that may be 
 advanced in favor of piecemeal restric- 
 tions should be considered. It may be 
 argued that this method affords an op- 
 portunity for elasticity ; or, in other words, 
 
 that somewhat different restrictions may 
 be imposed on different lots, and this 
 may be desirable from the point of view 
 of attractive development. But the 
 method of drawing restrictions for the 
 entire plat does not necessarily mean 
 uniform restrictions. In fact, in many of 
 the high-class developments provision is 
 made for the different treatment of dif- 
 ferent lots, or groups of lots. By this 
 method it is possible to have elasticity 
 in restrictive agreements and at the 
 same time have adequate control. 
 
 The second method of imposing re- 
 strictions coordinates them with the 
 plan for the subdivision. The coordina- 
 tion process is mutually beneficial to the 
 plan and to the restrictive agreement. 
 A plan gains through restrictions that 
 are drawn to assure its execution and 
 restrictions gain prestige in the courts 
 when they are based on a plan. This 
 study is confined to an analysis of deed 
 restrictions of this class, because they 
 represent a definite attempt at the con- 
 trol of land development. 
 
 The usefulness and desirability of 
 deed restrictions in insuring the de- 
 veloper's plan are generally granted. 
 They constitute the means of enforcing 
 a plan of development. But because of 
 the binding nature of restrictive agree- 
 ments and the considerable periods of 
 time for which they are established, the 
 courts exercise great caution in interpret- 
 ing contracts of this nature and circum- 
 scribe them carefully lest they infringe 
 too much upon the rights of the indi- 
 vidual in his land, or impose stipula- 
 tions not in harmony with the general 
 interest. 
 
 6 "Where a deed refers to a plat or subdivision, the were recited in it." Simpson v. Mikkelsen, 196 111. 575 
 particular descriptions shown upon such plat or sub- at 579 (1902). 
 division are as much a part of the deed as though they 6 Eckhart v. Irons, 128 111. 568 (1889). 
 
CHAPTER III 
 
 The Legal Aspects of Deed Restrictions 
 
 The purpose of this chapter is to 
 sketch broadly the legal background on 
 which deed restrictions rest and to call 
 attention to some fundamental prin- 
 ciples which should be observed in the 
 construction of restrictive clauses. It is 
 not proposed to give an exhaustive treat- 
 ment of the legal foundations and legal 
 peculiarities of deed restrictions. 
 
 Even to outline the most significant 
 legal features of deed restrictions is both 
 difficult and dangerous. It is difficult 
 because of the great complexity of the 
 law of real property and restrictive 
 agreements form but a small fraction of 
 the whole. It is dangerous in that any 
 generalization is more or less inaccurate 
 and misleading, because the laws of the 
 several states and the attitudes of their 
 courts vary so widely. For example, 
 in a number of states a restriction pro- 
 hibiting the sale of certain property to, 
 or the occupancy of certain property by, 
 persons not of the Caucasian race is 
 valid. But California regards the first 
 prohibition as a restraint upon alienation 
 which is forbidden by its Civil Code. 1 
 The case of Los Angeles Investment 
 Company v. Gary 2 involved a prohibition 
 against both alienation to and occupancy 
 by non-Caucasians which was to be in 
 
 'Civil Code, par. 711. "Conditions restraining 
 alienation, when repugnant to the interest created, 
 are void." However, in the Alien Land Law (G. L., 
 Act. 261) initiated and approved by electors, November 
 2, 1920, aliens ineligible for citizenship may own or 
 lease real estate as provided by treaty between the 
 United States and foreign powers, and not otherwise. 
 As amended in May, 1927, Act 261, Sec. 9a, the burden 
 of proving eligibility to citizenship was placed on the 
 alien. The 1920 statute was upheld as constitutional in 
 Porterfield v. Webb, 263 U. S. 225 (1923), which involved 
 a lease of agricultural land to a Japanese. An interest- 
 ing question is whether a condition restraining alien- 
 ation to a non-Caucasian who is ineligible for citizen- 
 
 operation until January 1st, 1930. The 
 court ruled on both points. 
 
 "The condition that the property be not 
 sold, leased, or rented to one not of Cau- 
 casian birth is clearly a restraint on aliena- 
 tion. The deed likewise purports to convey 
 the fee, and an incident of an estate in fee is 
 the right of free disposal and transfer. The 
 condition therefore is repugnant to the in- 
 terest created . . . Our conclusion is 
 that the condition against occupation of the 
 property by anyone not of the Caucasian 
 race is valid." 
 
 Therefore, in California any restriction 
 which discriminates in this way must 
 confine itself to a prohibition against 
 "use and occupancy," not against aliena- 
 tion. This illustration merely empha- 
 sizes the fact that rules-of-thumb cannot 
 be applied in a treatment of deed 
 restrictions. 
 
 A deed has been variously defined. 
 The broad definition 3 of a deed as a 
 contract under seal and delivered is 
 discarded here in favor of a definition 
 which defines the more specific uses of 
 the term as it is found in the law of real 
 property: 'A deed is the instrument by 
 which the absolute title, or interest, in 
 real estate is transferred from the 
 grantor, or owner, to the grantee, or 
 purchaser." 4 
 
 ship would be valid, unless contrary to treaty stipula- 
 tions, despite the general prohibition of the Civil Code. 
 
 2 181 Cal. 680, 186 Pac. 596 (1919). The case in- 
 volved persons of African descent. 
 
 3 William C. Robinson, Elementary Law (Boston: 
 Little, Brown and Co., 1910) sec. 129. "A deed is a 
 writing sealed and delivered between the parties;" see 
 also Bouvier's Law Dictionary (Rawle's Edition, St. 
 Paul: West Publishing Co., 1914), "DEED. A written 
 instrument under seal, containing a contract or agree- 
 ment which has been delivered by the party to be bound 
 and accepted by the obligee or covenantee." 
 
 4 Nathan William MacChesney, Principles of Real 
 Estate Law (New York: Macmillan Co., 1927) p. 838. 
 
LEGAL ASPECTS 
 
 17 
 
 The essential parts of a deed, as 
 usually enumerated, are the premises, 
 the habendum, the tenendum, the redden- 
 dum and the conclusion. The habendum 
 and tenendum are now obsolete. 5 Even the 
 premises and the conclusion are rela- 
 tively uniform and perfunctory; their 
 form and general content are predeter- 
 mined. The reddendum, therefore, which 
 contains the covenants and conditions 
 imposed by the grantor, is the most im- 
 portant part of the deed from the point 
 of view of control over land develop- 
 ment. This section constitutes the flexi- 
 ble and dynamic portion of the instru- 
 ment. The clauses can be formulated — 
 within the limits of the law, of course — 
 to exercise whatever degree of control is 
 desired. It might be mentioned at this 
 point, however, that restrictions may be 
 created by other instruments than deeds, 
 provided a valuable consideration is 
 involved. 6 The contract of sale is the 
 medium most commonly used, when the 
 deed is not the vehicle for the restric- 
 tions. 
 
 As already stated, the right to create 
 deed restrictions rests upon the right 
 of free contract. It is generally con- 
 ceded that in conveying real estate the 
 grantor may, within certain limits, im- 
 pose restrictions on the use of that 
 property. In the case of Eckhartv. Irons 7 
 the court states a position which is 
 fairly typical when it says: 
 
 "The power of the grantor to thus impose 
 limitations and restrictions upon the use and 
 
 »/«</., p. 63. 
 
 6 "The fact that the restriction is created in an instru- 
 ment independent of the deed conveying title is of no 
 consequence, as long as there is a valuable consideration 
 moving to and from the signers." Erichsen v. Tapert, 
 172 Mich. 457 at 463 (1912). 
 
 7 128 111. 568 at 579 (1889); see also Frye v. Partridge, 
 82 111. 267 (1876). 
 
 8 Cooperative Vineyards Co. v. Ft. Stockton Irrigated 
 Lands Co., 158 S. W. 1191 (Tex. Civ. App.) (1913); 
 Schoonmaker v. Heckscher, 171 N. Y. App. Div. 148, 
 157 N. Y. Supp. 75 (1916). 
 
 enjoyment of the property granted, as he 
 may deem proper, and of the grantee to 
 accept the same, cannot be denied, unless 
 opposed to public policy." 
 
 Occasionally the courts have gone so far 
 as to describe this right to enter into 
 restrictive agreements as "unquestion- 
 able." 8 
 
 The right to enter into restrictive 
 agreements, however, is not unrestrained. 
 Two major limitations may be cited. 
 Restrictions may not be (i) contrary to 
 public policy, 9 or (2) "unreasonable," 10 
 used in its legal sense. The general 
 principle has been established that in- 
 dividuals in their agreements cannot 
 bind themselves to do that which is 
 "injurious to the public or against the 
 public good." 11 This definition of what 
 is opposed to public policy, as a limita- 
 tion on the power of a grantor to impose 
 restrictions, presents only the negative 
 aspects. One of the cases already cited 
 states the requirement from the positive 
 side: "Such a restriction on the use of 
 real estate, where it does not appear that 
 either some individual or the public 
 would be benefited by it, would be con- 
 trary to public policy and void." 12 In 
 other words, according to the test 
 established here, someone must be defi- 
 nitely benefited by the restriction; other- 
 wise it is invalid as against public pol- 
 icy. 
 
 "Reasonableness" is frequently set up 
 as a limitation upon the drafting of 
 restrictive agreements. The term "rea- 
 
 9 Mitchell v. Leavitt, 30 Conn. 587 (1862); Hutchinson 
 v. Ulrich, 145 111. 336 (1893); Cooperative Vineyards Co. 
 v. Ft. Stockton Irrig. Lands Co., supra n. 8. 
 
 10 Schoonmaker v. Heckscher, supra n. 8. 
 
 11 See Bouvier's Law Dictionary, op. cit., article on 
 "Public Policy;" also article on "Void," "a contract 
 binding the maker to do something opposed to the 
 public policy of the state or nation, or which conflicts 
 with the wants, interest, or prevailing sentiment of 
 the people, or our obligations to the world, or is re- 
 pugnant to the morals of the times, is void, however 
 solemnly the same may be made." 
 
 12 Mitchell v. Leavitt, supra n. 9. 
 
DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 sonableness" in law means more than 
 moderation. Rationality is one test of 
 the legal concept of "reasonableness," 
 but the courts often apply an additional 
 standard. An action may be considered 
 reasonable if it is just according to the 
 judgment of the average man, if it is 
 what the average man would expect to 
 happen under the circumstances. This 
 test is applied by the courts to both 
 private and public means of control. 
 Zoning is tested in terms of "reason- 
 ableness" and so are private restric- 
 tions. 13 To summarize briefly, restrictive 
 agreements in deeds are contracts which 
 like all contracts may not be harmful 
 to the public nor contrary to the rational 
 expectations of an average man. 
 
 Having considered the legal basis of 
 restrictions, it is pertinent to inquire 
 into some of the mechanics of their 
 structure. Of primary importance is 
 consideration of the difference between a 
 restrictive covenant and a condition. 
 
 In spite of a statement by a Cali- 
 fornia court that "the distinction be- 
 tween conditions and covenants is a 
 decided one and the principles applic- 
 able quite different," 14 the loose use of 
 the terms warrants an examination of 
 their respective definitions. 
 
 One distinction between a covenant 
 and a condition, often mentioned in the 
 literature of the law, is that the latter 
 impairs the estate conveyed whereas the 
 former does not affect the estate. But 
 from the economic standpoint both 
 covenants and conditions appear de- 
 signed to prevent certain acts which 
 would impair the interest conveyed or 
 assure performance of certain acts. If a 
 
 purchaser covenants not to erect a 
 garage and use it for a residence before 
 building the main house, his rights to 
 use the land are lessened, sometimes to 
 his disadvantage. Without going so far 
 as to say that there may not be some 
 cases in which the impairment of legal 
 interests or estates is a distinguishing 
 factor, the chief difference between a 
 covenant and a condition is the remedies 
 available in case of breach. Restrictive 
 covenants will be enforced in equity. An 
 injunction to prevent the violation of 
 the restriction in question is the usual 
 relief sought. The question of damages 
 is a secondary alternative, because the 
 amount of damages is difficult to as- 
 certain for land. Sometimes damages are 
 awarded by the court when an injunction, 
 if issued, would work undue hardship. 15 
 The particular kind of conditions with 
 which deed restrictions are concerned is 
 the "condition subsequent." A condi- 
 tion subsequent in a deed provides that 
 the estate is conveyed contingent upon 
 the happening or non-happening of a 
 certain event or upon the performance or 
 non-performance of certain acts. Stated 
 more technically, "subsequent condi- 
 tions are those whose effect is not pro- 
 duced until after the vesting of the estate 
 or bequest or the commencement of the 
 obligation." 16 Violation of a condition 
 subsequent, on the other hand, may be 
 remedied through a court of law by 
 re-entry of the property. 17 The effect of 
 a condition subsequent is, of course, to 
 make the title rest less securely in the 
 grantee. 
 
 13 "Restrictions will be upheld by the courts provided 
 they are reasonable." Schoonmaker v. Heckscher, 
 supra n. 7. 
 
 14 Los Angeles Investment Co. v. Gary, supra n. 2. 
 
 15 See Page v. Murray, 46 N. J. Eq. 325 (1890); Zipp v. 
 Barker, 55 N. Y. Supp. 246 (1898); Jackson v. Steven- 
 son, 156 Mass. 496 (1892). 
 
 16 Bouvier's Law Dictionary, op. cit., article on "Con- 
 dition." 
 
 17 The purposes of the two devices are also quite 
 different. A covenant is drawn primarily tor the pro- 
 tection of the property and may "run with the land," 
 thus becoming binding not only upon the grantee but 
 upon subsequent holders as well. In so tar as a condition 
 is frequently drawn with the interests of the grantor in 
 view, it may be said to be more in the nature of a 
 personal agreement. 
 
LEGAL ASPECTS 
 
 19 
 
 The following quotation summarizes 
 the clear-cut legal distinction between 
 covenants and conditions subsequent. 
 
 "A condition subsequent is also to be dis- 
 tinguished from a covenant, a breach of 
 which cannot, in the absence of a statutory 
 provision to the contrary, affect the estate of 
 the convenantor, but gives to the grantor or 
 lessor, with whom the covenant is made, a 
 right of action to recover damages, for breach 
 thereof, or occasionally a right to an injunc- 
 tion or a decree for specific performance, 
 neither of which is given by a condition." 18 
 
 Thus the chief distinction lies in the 
 remedies available. Which of these de- 
 vices the subdivider should use in a spe- 
 cific instance depends on his purpose. 
 Inasmuch as his business is the disposal 
 of subdivision lots, he might logically 
 reserve conditions subsequent for only 
 those urgent restrictions, violation of 
 which would seriously endanger the de- 
 velopment and thus warrant reposses- 
 sion of the property. 
 
 Much litigation has arisen as a result 
 of the loose use of the terms. The courts 
 do not look with favor upon anything 
 which tends to destroy or impair an 
 estate in land and hence their hostility 
 to "conditions subsequent" inserted in 
 deeds. Speaking generally, the evolution 
 of the law of real property has been in 
 the direction of facilitating the transfer 
 of real estate, making land transactions 
 more and more comparable to com- 
 modity transactions. Therefore, the 
 attitude of the courts is both logical and 
 explainable, for a condition lessens the 
 security of the title conveyed. 
 
 As a result the courts will always con- 
 strue a condition as a covenant wherever 
 possible. The following quotation is 
 representative of the ample authority on 
 this point. 
 
 18 Herbert Thorndike Tiffany, The Law of Real Prop- 
 erty, (Chicago: Callaghan & Co., 1920), Vol. I, p. 264. 
 
 19 Robert T. Devlin, Law 0/ Real Property and Deeds, 
 (.Chicago: Callaghan & Co., 191 1), Vol. 2, Sec. 970 c, p. 
 1812. The author cites as a leading case in this con- 
 
 "Whether the provisions of a deed are to 
 be construed as covenants or as conditions 
 must be determined by a construction of the 
 entire instrument. In case of doubt they will 
 be construed as covenants and not as condi- 
 tions in order to prevent a forfeiture of the 
 estate, and this construction is to be reached 
 regardless of the technical language used by 
 the parties." 19 
 
 Two major considerations guide the 
 courts in determining whether a restric- 
 tion shall be construed as a covenant or a 
 condition. The first and most important 
 is the intention of the parties as it may 
 be gleaned from careful examination of 
 the entire instrument and the second is 
 the language of the agreement. Fre- 
 quently the words in the deed restriction 
 do not convey the intention of the 
 parties and for this reason the two ele- 
 ments are considered separately. A 
 New York case 20 states clearly a posi- 
 tion which is fairly representative: 
 
 "Although the words of the clause in ques- 
 tion (under express condition) are apt to 
 describe a condition subsequent reserved by 
 a grantor, we are in nowise obliged to take 
 them literally. In the consideration of what, 
 by the use of these words, was imported into 
 the conveyance, we are at liberty to affix that 
 meaning to them which the general view of 
 the instrument and of the situation of the 
 parties makes manifest. Whether they 
 created a condition, or a covenant, must de- 
 pend upon what was the intention of the 
 parties; for covenants and conditions may 
 be created by the same words." 
 
 Thus, when a condition subsequent is 
 to be created, that intention should be 
 stated beyond question of doubt. Such 
 phrases as "under this express condition" 
 and "provided always" and "these 
 presents are upon the express condition 
 that" are not sufficient for this purpose, 21 
 
 nection Minard v. Delaware, Lackawanna and Western 
 Railroad Co., 1,39 Fed. 60 (1905). 
 
 20 Post v. Weil, 115 N. Y. 361 at 369 (1889). 
 
 21 Koch v. Streuter, 232 111. 594 (1908); McCusker v. 
 Goode, 185 Mass., 607 71 N. E. 76 (1904); Druecker 
 v. McLaughlin, 235 111. 367, 85 N. E. 647 (1908). 
 
20 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 however. The courts regard them 
 merely as means of emphasis and not as 
 introducing a new and separate idea 
 which would involve forfeiture of the 
 estate as a penalty for their violation. 
 In order to create a condition subsequent 
 the most satisfactory method seems to 
 be to include a re-entry clause but even 
 this inclusion will not guarantee con- 
 struction of the restriction by the courts 
 as a condition subsequent. If the spirit 
 of the instrument as a whole or the 
 situation of the parties at the time the 
 agreement was entered into suggests 
 the slightest doubt as to the creation of 
 a condition, the courts will construe the 
 condition as a covenant. 
 
 Another important item in what may 
 be called the legal mechanism of deed 
 restrictions has to do with the question 
 of when restrictions may "run with the 
 land." The major tests of covenants run- 
 ning with the land are whether they per- 
 tain to the use, the value or the estate con- 
 veyed in that land. All of these tests are 
 represented in the following quotation: 
 
 "In order that a covenant may run with 
 the land and bind assignees it must bear 
 intimate relation with and concern to the 
 estates or lands conveyed . . . 
 
 "It runs with the land when performance 
 is made a charge upon the land . . . 
 when performance affects the value of the 
 land . . . 
 
 "Where land is divided into parcels con- 
 veyed to different grantees, a covenant is 
 divided among them and each may sue or be 
 sued on his portion of the covenant." 22 
 
 The benefit of the land conveyed is the 
 purpose of covenants running with the 
 land. 23 This is the legal way of stating 
 the case, but in the last analysis the 
 benefit of the holders of the land would 
 
 22 Christopher G. Tiedeman, The American Law of 
 Real Property, (St. Louis: Thomas Law Book Co., 
 1924), 4th ed., Sec. 626. 
 
 23 Berryman v. Hotel Savoy Co., 160 Cal. 559 09 11 )- 
 
 24 Devlin, op. cit., sec. 990; the author cites in this 
 connection the case of Skinner v. Shepard, 130 Mass. 
 
 seem to be the aim. When restrictive 
 agreements benefit only the vendor, 
 they are regarded rather as personal 
 covenants, binding only upon the orig- 
 inal parties to the contract. Stated 
 somewhat differently, "in the absence 
 of evidence that the restriction was im- 
 posed for the benefit of other land, it is 
 construed as a personal covenant merely 
 with the grantor." 24 
 
 With reference to enforcement, the 
 fact that certain restrictions do run with 
 the land is not a basis for general action. 
 Enforcement of such restrictions rests 
 on the theory that they indicate a gen- 
 eral plan of improvement and purchasers 
 with notice of the plan may be compelled 
 by suit of any owner of a lot covered by 
 this plan to comply with the covenant 
 made by the subdivider-vendor. 2 " 5 This 
 right to enforce passes with the land for 
 the duration of the restriction. As to 
 phraseology, mere statement to the 
 effect that the restrictive covenants will 
 run with the land is not sufficient. The 
 essence of the restriction itself is the 
 determining factor. 26 
 
 Covenants running with the land 
 are perpetuated through the recording 
 process upon which the whole system of 
 land titles and conveyances has rested 
 for many years. The purposes of the 
 recording statutes are to preserve the 
 "muniments" or evidences of title and 
 to give the community notice of all 
 changes in the ownership of property and 
 the circumstances accompanying such 
 change of ownership. The theory under- 
 lying the recording acts has been to place 
 on anyone dealing in land the legal obli- 
 gation of consulting the records and ac- 
 quainting himself with their contents. 
 In other words, anyone dealing in land 
 is presumed to have knowledge of the 
 
 180 (1881); see also Wood v. Stehrer, 119 Md. 143, 86 
 Atl. 128 (1912). 
 
 26 Wiegman v. Kusel, 270 111. 520 (1915). 
 
 26 See Tiffany, op. cit., Vol. II, p. 1415. 
 
LEGAL ASPECTS 
 
 21 
 
 substance and effect of every properly- 
 recorded instrument. 27 
 
 Control over land utilization, which is 
 the main concern of this study, is ex- 
 ercised through covenants which are 
 part of the recorded plats or instruments 
 of conveyance. These restrictive cove- 
 nants therefore become part of the public 
 record and all subsequent holders are 
 bound by their content under the doc- 
 trine of constructive notice. The essence 
 of constructive notice is to be found in 
 the following quotation: 
 
 "The test is a plain and simple one. It is 
 whether the record, if examined and read by 
 the party dealing with the premises, would 
 be an actual notice to him of the original in- 
 strument, and of all its parts and provisions. 
 By the policy of the recording acts, such a 
 party is called upon to search the records, 
 and he has a right to rely upon what he finds 
 there entered as a true and complete trans- 
 script of any and every instrument affecting 
 the title to the lands with respect to which he 
 is dealing. A record can only be constructive 
 notice, at most, of whatever is contained 
 within itself. Finally, the record will not be 
 notice unless it and the original instrument 
 of which it is a copy correctly and sufficiently 
 describe the premises which are to be af- 
 fected, and correctly and sufficiently state all 
 other provisions which are material to the 
 rights and interests of subsequent parties. 
 The premises should at least so be described 
 and identified that a subsequent purchaser 
 or encumbrancer would have the means of 
 ascertaining with accuracy what they were 
 . . . The language both of the original 
 and of the record must be such that if a sub- 
 sequent purchaser or encumbrancer should 
 examine the instrument itself, he would 
 obtain thereby an actual notice of all the 
 rights which were intended to be created or 
 conferred, by it." 28 
 
 27 Johnson v. Hess, 126 Ind. 298 (1890). 
 
 28 John Norton Pomeroy, Equity Jurisprudence (San 
 Francisco: Bancroft-Whitney Co., 1901), 2d ed., vol. 2, 
 sec. 654. 
 
 29 Ewertsen v. Gerstenberg, 186 111. 344 at 349 (1900) 
 ". . . for we are satisfied from the evidence that 
 this plat was referred to and made a part of the parti- 
 tion deed and subsequent conveyances and has been 
 constantly recognized by all the lot owners as a common 
 
 This statement ties up the doctrine of 
 constructive notice very definitely with 
 the recording acts. Any part of the pub- 
 lic record is thus binding upon subse- 
 quent holders, for they are charged with 
 notice of its contents. 
 
 This holds true even though the con- 
 veyances to these subsequent holders 
 do not actually mention the restriction. 29 
 
 Consideration of the doctrine of notice 
 should not omit some reference to the 
 concept of actual notice. Actual notice 
 is also binding on subsequent purchasers. 
 But a question may easily be raised as 
 to where to draw the line between actual 
 and constructive notice. One writer 
 goes so far as to say that the distinction 
 is relatively unimportant, unless some 
 statute requires actual notice under cer- 
 tain circumstances. The following quo- 
 tation illustrates this point of view: 
 
 "And so the presence of structures upon 
 the property may be sufficient to charge a 
 purchaser with actual notice of an easement 
 upon the property, provided he has actual 
 knowledge of such structures. But if he were 
 to be charged with notice of the easement by 
 reason of the existence of the structures, 
 independently of his having knowledge of 
 them, the notice would be constructive and 
 not actual." 30 
 
 Consideration of notice and its bind- 
 ing effect upon purchasers leads logically 
 to a discussion of the enforcement of 
 deed restrictions. This phase of the sub- 
 ject falls under two heads: What are the 
 methods of enforcing deed restrictions 
 and by whom are they enforceable? 
 
 source of title and that Ewartsen had notice of it and of 
 said restrictions and is now bound by them unless these 
 restrictions have ceased to exist or are no longer en- 
 forceable against him or his said lots, in equity, for 
 reasons hereinafter stated. His property was not re- 
 lieved from their bindihg force merely because they 
 were not expressly reserved in the conveyance to him, 
 or in others of the deeds in his chain of title." See also 
 Library Neighborhood Assn. v. Goosen, 229 Mich. 89 
 (1924). 
 
 30 Tiffany, op. cit., vol. 2, p. 2246. See also entire 
 sec. 573. 
 
11 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 As stated previously, deed restrictions 
 are enforceable by injunction from a 
 court of equity and by re-entry proceed- 
 ings in a court of law depending on 
 whether the restrictions are covenants 
 or conditions. 
 
 Of greater importance is the question 
 of who may enforce these restrictions. 
 The right of enforcement follows the 
 benefited land. Thus restrictions may 
 be classified from the point of view of 
 enforcement under two general headings: 
 (i) restrictions drawn for the benefit of 
 the grantor are enforceable by him and 
 his assigns in possession of the bene- 
 fited property against any or all grant- 
 ees; and (2) restrictions drawn to carry 
 out a general plan for development are 
 enforceable by any grantee against any 
 other grantee. 
 
 Restrictions of this latter class are 
 most important for this study and many 
 cases might be cited to illustrate the 
 principle of enforcement in such in- 
 stances — namely, that the holders of the 
 title to the benefited land have the 
 right to enforce the restrictive agree- 
 ments. 31 
 
 Restrictions in pursuance of a general 
 scheme are binding upon all who take 
 with notice thereof and are enforceable 
 in equity by any one of these purchasers 
 against any other. 32 In other words, it is 
 privity of estate which counts in such 
 cases and not privity of contract. The 
 personal element becomes secondary 
 and the benefited land is all important 
 in the eyes of the law. 
 
 31 Summers v. Beeler, 90 Md. 475 (1899); Judd v. 
 Robinson, 41 Colo. 222 (1907); McNeil v. Gary, 40 
 App. D. C. 397 (1913); Godley v. Weisman, 113 Minn. 
 I (1916); Wright v. P/rimnier, 99 Neb. 447 (1916). 
 
 32 See Pomeroy, op. cit., vol. 4, sec. 1693; also Alien v. 
 City of Detroit, 167 Mich. 464 (1911). 
 
 33 268 Mo. 680, at 689 (1916); see also Wright v. 
 Pfrimmer, supra n. 3 at 451, where the court says: 
 ■"Restrictive covenants being in derogation of the land- 
 owner's free use of his property, one who claims a right 
 to enforce such covenants has the burden of proving 
 
 In enforcing deed restrictions there are 
 several things which the courts take into 
 consideration in their interpretation of 
 the instruments. These items constitute 
 a miscellaneous group of considerations 
 which can best be treated en masse be- 
 cause they are interrelated and over- 
 lapping in their operation. In the first 
 place, the natural inhibition of the courts 
 against restrictions must be considered, 
 for the courts tend to look with disfavor 
 on any impediments to the free use 
 of the landowner's property. A Mis- 
 souri court states the point concisely 
 in the case of 7Ann v. S idler 33 where 
 it says that "a restrictive covenant 
 lessens the fee and is not favored 
 at law. It should therefore be made 
 manifest in no uncertain manner and not 
 left entirely to implication . . ." 
 
 As a corollary to the presumption 
 against restrictions is the inclination of 
 the courts to construe restrictions in 
 favor of free use of the property where- 
 ever the slightest doubt exists as to the 
 meaning of the covenant or the inten- 
 tion of the parties. A host of cases 34 
 might be cited but the opinion of a 
 Pennsylvania court in Johnson v. Jones 3 ' 3 
 sums up the general attitude on this 
 point as follows: ". . . all doubts 
 are to be resolved against the restriction 
 and in favor of the free and unrestricted 
 use of the property." 
 
 The intention of the parties to the 
 contract has already been referred to, 
 both in connection with the distinction 
 
 that they were made for his benefit;" also Mc.Xichol v. 
 Townsend, 73 N. J. Eq. 276 (1907); Sharp v. Ropes, 
 no Mass. 381 (1872); Anderson v. Stewart, 2S< 111. 605 
 (1918). 
 
 31 Eckhart v. Irons, 128 111. 568 (1889); Melson v. 
 Ormsby, 169 la. 522 (1915); Easterbrook v. Hebrew L. 
 Orphan Soc.,8$ Conn. 289(1912); Hutchinson v. U/rich, 
 145 111. 336 (1893); Peabody Heights Co. v. Willson, 
 82 Md. 186 (1895); Schoonmaker v. Heckscher, supra 
 n. 8 at 77. Randall v. Atlanta Adv. Serv. 159 Ga. 217 
 (1924); Curtis v. Rubin, 244 111. 88 (1910). 
 
 35 244 Pa. St. 386 at 389 (1914). 
 
LEGAL ASPECTS 
 
 23 
 
 between a covenant and a condition and 
 immediately above in connection with 
 the construction in favor of free use of 
 the property. The intention of the 
 parties is a controlling factor in the inter- 
 pretation and enforcement of deed re- 
 strictions, as it is in all forms of contract. 
 The rather elaborate procedure by which 
 intention is determined in restrictive 
 clauses is described by the following 
 quotation from an Iowa opinion. 
 
 "Therefore courts of equity have recog- 
 nized the necessity of looking beyond the 
 mere printed restriction, to the parties them- 
 selves; the subject matter of the restriction; 
 the conditions as they exist, surrounding the 
 subject matter of the restriction; the topog- 
 raphy of the country surrounding the place 
 affected by the restriction; the scheme and 
 purpose to accomplish which the restriction 
 was made; and this in order to ascertain the 
 intent of the parties in respect to the prop- 
 erty conveyed." 36 
 
 It may be said, therefore, that the inten- 
 tion of the parties is central in the 
 interpretation of deed restrictions and 
 therefore in their enforcement. 37 
 
 The intention of the parties is ma- 
 terially aided by the drawing of restric- 
 tions in connection with a plan for the 
 development of an entire tract. This 
 plan shows the basis for the restrictions 
 and pictures what the parties to the con- 
 tract propose to do. In their decisions 
 the courts frequently comment upon the 
 presence or absence of a general plan 
 for development and their judgment 
 often hinges on this point. 38 The state- 
 ment has been made that in Ohio, where 
 the attitude of the court seems to be 
 rather unfavorable to restrictions, in 
 
 38 Mehon v. Ormsby, supra n. 34 at 530. 
 
 37 Peabody Heights Co. v. Willson, supra n. 34; Post v- 
 Weil, supra n. 20; Godley v. Weisman, supra n. 31; 
 Schoonmakcr v. Heckscher, supra n. 8. 
 
 38 Killien v. Goodman, 229 Mich. 393, at 399 (1924); 
 High/and Realty Co. v. Groves, 130 Ky. 374, 113 S. W. 
 420 (1908); Wright v. Pjrimmer, supra n. 31, at 451; 
 Library Neighborhood Assn. v. Goosen, supra n. 29. 
 
 seven cases out of eight in the Supreme 
 Court the restrictions were upheld when 
 they applied to the entire tract. In the 
 eighth case the restrictions varied from 
 lot to lot and were rejected. 39 This 
 evidence is in no sense conclusive but it 
 is an interesting sidelight on the im- 
 portance that attaches to a plan of 
 development as a basis for deed restric- 
 tions. 
 
 The idea is sometimes advanced that 
 restrictions drawn in connection with a 
 plan for development are in the nature 
 of an easement. 40 Restrictive agree- 
 ments may be said to constitute a 
 negative easement. Each lot relinquishes 
 some portion of the free use which would 
 normally accrue to its owner and in 
 return benefits from a similar relinquish- 
 ment by other parcels in the tract. The 
 opinion of a New York court in Lands- 
 berg v. Rosenwasser contains an interest- 
 ing statement to this effect. 
 
 ". . . where a single tract is divided 
 into parcels, and the parcels are conveyed 
 by deeds containing similar restrictive cove- 
 nants pursuant to a uniform plan adopted 
 for the benefit of all, mutual negative ease- 
 ments are created, each parcel becoming a 
 servient and dominant tenement . . ." 41 
 
 However, there are times when, al- 
 though the intention of the parties is 
 clear, and the plan of development is 
 definite, the courts will refuse to enforce 
 restrictions in deeds. The most impor- 
 tant instance is that involved when the 
 character of the district has so changed 
 that the enforcement of the restrictions 
 would work a real hardship to the land- 
 
 39 Planning Problems, 1916, Papers and Discussions 
 of the National Conference on City Planning, p. 
 108-109. 
 
 40 C. P. Berry, Digest of the Law of Restrictions on 
 the Use of Real Property (Chicago: Geo. I. Jones, 1 91 5) 
 P- .367- 
 
 41 124 N. Y. App. Div. 559, at 561, (1908); see also 
 Curtis v. Rubin, supra n. 34; Riverbank Imp. Co. v. 
 Bancroft, 209 Mass. 217,95 N. E. 216 (1911); Hen- 
 derson v. Champion, 83 N.J. Eq. 554, 91 Atl.332 (1914). 
 
24 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 owner. For example, a district may be 
 restricted to single-family residences but 
 obviously equity would be endangered if 
 landowners in that area were restricted 
 to the erection of single-family residences 
 after an elevated line had traversed the 
 center of that district. The presence of 
 the elevated line changed the character 
 of the district and a court of equity 
 would not be inclined to enforce strict 
 residential restrictions because such en- 
 forcement would not secure the original 
 purposes of the restrictions. 42 In order 
 to decide whether a district has so 
 changed as to render enforcement of 
 deed restrictions inequitable, the courts 
 reason with respect to two points: Will 
 enforcement of the covenants restore the 
 district to the original character which 
 the restrictions were designed to create 
 and preserve; Is the change in the dis- 
 trict the result of violation of the restric- 
 tions or of other causes in which the 
 restrictive covenants are not involved? 43 
 In this connection an Iowa court gave a 
 very broad interpretation of its powers 
 in equity when it said: 
 
 "Again it has been the holding of this court 
 that specific performance of a building re- 
 strictive covenant rests largely in the sound 
 discretion of the court, and relief will be 
 denied if the defendant will be subject to 
 greater hardship or consequences would be 
 inequitable, but pecuniary loss to defendant 
 will not itself alone prevent enforcement." 44 
 
 The decisions of the courts with re- 
 spect to change in the character of the 
 district are particularly important in 
 
 42 Columbia College v. Thatcher, 87 N. Y. 311 (1882); 
 Kneip v. Schroeder, 255 111. 621 (1912); Moore v. Curry, 
 176 Mich. 456, 142 N. W. 839 (1913); Leonard v. Hotel 
 Majestic Co., 17 N. Y. Misc. 229, 40 N. Y. Supp. 1044 
 (1896). 
 
 43 Jackson v. Stevenson, supra n. 15: "It is evident 
 that the purpose of the restrictions as a whole was to 
 make the locality a suitable one for residences; and that 
 owing to the general growth of the city and the present 
 use of the whole neighborhood for business, this purpose 
 can no longer be accomplished. If all the restrictions 
 imposed in the deeds should be rigidly enforced, it 
 
 conflicts between zoning ordinances and 
 deed restrictions. By the exercise of 
 this discretionary power a court may 
 prevent or sanction transition to a lower 
 use and thus exert a very considerable 
 influence on the development of the city 
 pattern. 
 
 Up to this point attention has been 
 focussed on the enforcement of restric- 
 tions and their proper construction to 
 insure enforcement. The question natur- 
 ally presents itself: How may restric- 
 tions be set aside? General Nathan 
 William MacChesney has summarized 
 the means by which deed restrictions 
 may be released or extinguished: 45 
 
 1. "By expiration of the specified time limit; 
 
 2. By the uniting in one ownership of the 
 land benefited and restricted; 
 
 3. By the parties to the restriction agree- 
 ment releasing each other; 
 
 4. By prior violation of the restriction; 
 
 5. Where the character of the locality has so 
 changed that the restriction has lost its 
 effectiveness and a court of equity will in 
 its discretion deny relief against its viola- 
 tion." 
 
 This list states clearly the methods avail- 
 able for setting aside deed restrictions 
 and requires but little comment. Points 
 4 and 5 have already been touched upon. 
 The first point is obvious, but the par- 
 ticular problems clustering about this 
 matter of the duration of restrictive 
 covenants will be discussed in greater 
 detail in a later chapter. 
 
 A summary of the legal aspects of deed 
 restrictions from the point of view of the 
 subdivider who creates them should 
 
 would not restore to the locality the residential char- 
 acter, but would merely lessen the value of every lot for 
 business purposes. It would be oppressive and inequit- 
 able to give effect to the restriction; and since the 
 changed condition of the locality has resulted from 
 other causes than their breach, to enforce them in this 
 instance could have no other effect than to harass and 
 injure the defendant, without effecting the purpose for 
 which the restrictions were originally made." 
 
 44 Me Is on v. Ormsby, supra n. 34, at 533 (19 1 5)- 
 
 46 Op. cit., p. 589. 
 
LEGAL ASPECTS 
 
 25 
 
 emphasize the legal points to be noted 
 most particularly in drafting restrictive 
 agreements. A primary consideration is 
 the antipathy of the courts to any meas- 
 ure which may be an impediment to the 
 free use of land or its free alienation. 
 At the same time, however, the courts 
 do recognize the right of landowners to 
 regulate the use of the land they con- 
 vey and the law will uphold restrictive 
 agreements provided they meet certain 
 requirements. The most important re- 
 quirement is that the instrument express 
 clearly and definitely the intention of 
 the parties to the agreement. If this in- 
 volves making the title hinge upon a 
 condition subsequent, that fact should 
 be so stated that the courts may clearly 
 ascertain it. The other main require- 
 ment is that the restrictions be reason- 
 able — in other words, that the stipula- 
 tions be in harmony with the general 
 interest and in more or less obvious 
 pursuance of a preconceived plan. If the 
 courts can detect a reasonable intention 
 of the parties with respect to the utiliza- 
 tion of the land affected, the restrictive 
 covenants are fairly sure of being sus- 
 tained at law. The limitations which 
 surround the use of the devices have 
 been considered in some detail. They are 
 the result of the efforts of the law to pre- 
 vent too great control by the overzealous 
 or ill-advised creator of restrictions or by 
 the "dead hand." 46 
 
 In addition, a summary should not 
 omit to call attention once more to the 
 different requirements of the separate 
 states with respect to the form and con- 
 tent of conveyances. The importance of 
 carefully drafting these agreements so 
 that they will accord with the laws of the 
 
 46 The phrase, the "dead hand", refers to "concentra- 
 tion of property without fluidity, without being 
 amenable to control" which the law seeks to prevent. 
 Richard T. Ely, Property and Contract in Their Relation 
 to the Distribution of Wealth, (New York, Macmillan 
 Co., 1914), p. 455. 
 
 particular state in which they are to 
 operate cannot be overemphasized. 
 
 A summary from the legal point of 
 view should show the trend in the atti- 
 tude of the courts with reference to deed 
 restrictions. The importance which the 
 courts are attaching to the existence of a 
 general scheme for the development of a 
 large area is very significant. Such a 
 general plan is held to be evidence of a 
 certain mutuality of interest and purpose 
 which is dominant in the development 
 of legal principles. The increasing use of 
 the phrase "equitable easements" to 
 describe these agreements indicates the 
 tendency to emphasize the mutual na- 
 ture of the restrictions. But this mutual- 
 ity centers in the land. The parties are 
 rather incidental and the land is all-im- 
 portant. Equitable action involving 
 restrictions of this kind rests on the 
 interest in the land rather than on con- 
 currence in an agreement. 47 In other 
 words, an equitable interest as opposed 
 to a legal interest may be the authority 
 for action in the courts. 48 This attitude 
 of the courts amounts almost to a state- 
 ment that deed restrictions in pursuance 
 of a general scheme constitute automatic 
 control over land development, in the 
 sense that the human agency is not cen- 
 tral in their operation. The increasing 
 use of this form of control particularly in 
 new residential subdivisions promises op- 
 portunity for the development of other 
 important legal rulings in the future. 
 
 From the economic point of view the 
 significance of the legal aspects of deed 
 restrictions is found in their effect on the 
 potentialities of this device for control- 
 ling the use of land and the relationships 
 between persons arising out of such use. 
 Although the courts may emphasize the 
 
 47 Emphasis is being placed on "privity of estate" 
 rather than "privity of contract." 
 
 48 See Pomeroy, op. cit., vol. 4, sec. 1693. 
 
26 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 importance of the land itself, as when 
 covenants are said to run with the land, 
 the economist is concerned with the 
 human relations which at various times 
 center on a particular plot of land. To 
 him the effects of judicial interpretations 
 of deed restrictions upon the parties to 
 land bargains are the most important 
 
 considerations. This brief examination 
 of the legal aspects shows that deed re- 
 strictions, if carefully drawn, are a po- 
 tent form of control. The courts will 
 uphold them, within limits, and persons 
 seeking to protect their investments in 
 land may with some confidence resort to 
 this device. 
 
CHAPTER IV 
 
 Restrictive Clauses Concerning Type and Use of Structures and Lot Area 
 
 In studying deed restrictions as a form 
 of control the attempt was made to 
 obtain the necessary information from 
 instruments actually in use in develop- 
 ments over the country. Two main 
 sources were used in securing the deed 
 restrictions for the analysis contained in 
 these chapters. Of the 84 deeds con- 
 sidered 55 were obtained from members 
 of the Home Building and Subdividers 
 Division of the National Association of 
 Real Estate Boards and the Chicago 
 Real Estate Board. The data on the 
 other 29 were taken from a charted sum- 
 mary 1 of deed restrictions on properties 
 planned by Olmsted Brothers, of Brook- 
 line, Massachusetts; therefore the in- 
 formation is not so complete as for the 
 other 55. However, they afford oppor- 
 tunity for interesting comparisons, par- 
 ticularly in view of the fact that 23 of 
 the 29 Olmsted cases antedate 1920, 
 while the majority of the other group of 
 55 cover subdivisions developed since 
 that date and in most cases since 
 1924. 
 
 In view of the sources from which the 
 data were obtained, it cannot be said 
 that the restrictions analyzed here are 
 typical of the subdivision business as a 
 whole. The Home Builders and Sub- 
 dividers Division of the National Asso- 
 ciation of Real Estate Boards includes 
 in its membership the developers of most 
 of the better-class subdivisions in the 
 country. Likewise those subdividers who 
 have employed landscape architects of 
 national reputation such as Olmsted 
 Brothers are above the average in the 
 business. It should therefore be empha- 
 
 1 See Landscape Architecture, H. V. Hubbard, "Land 
 Subdivision Restrictions" (Oct., 1925). 
 
 sized at the outset that the concern here 
 is rather with the different types of con- 
 trol and their effectiveness than with 
 the extent of their use. 
 
 The material collected is so diverse 
 and so detailed that some method of 
 condensing it seemed desirable. Hence, 
 a series of tables has been prepared to 
 show the differences as well as the simi- 
 larities between separate sets of deed 
 restrictions. The brevity necessary in 
 making such a table impairs somewhat 
 the accuracy of the statements but this 
 may be balanced by the value to be de- 
 rived from being able to compare and 
 visualize the wide divergencies in the 
 scope and character of the restrictive 
 sections of the separate deeds. 
 
 Restrictions on the Type and Use of 
 Structures 
 
 The developer's plan is the starting 
 point for a discussion of restrictions on 
 the type and use of structures, for the 
 subdivider must decide at the outset 
 what variety of uses, if any, he is going 
 to have in his development. If more 
 than one type of use is to be permitted, 
 it is of course advisable to divide the 
 subdivision into carefully denned use 
 districts and for further protection to 
 designate both the uses permitted and 
 those prohibited. 
 
 Taking the prohibitions first, the most 
 obvious are the nuisances. The term 
 "nuisance" has a very broad meaning 
 when used in connection with residential 
 areas, for almost any use not strictly 
 residential in character is a nuisance. 
 The lists of nuisances vary widely, in- 
 cluding the most obvious items such as 
 
28 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Table I. Restrictions Pertaining to the Type and Use of Structures* 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 Business 
 or Trade 
 Prohibited 
 
 Type of 
 Improvement 
 
 Height 
 
 of 
 Build- 
 ings 
 
 Approval of 
 
 Building 
 
 Plans 
 
 Cost 
 
 of 
 Build- 
 ings 
 
 Outbuildings 
 
 Nuisances 
 Pro- 
 hibited 
 
 
 Except on 
 specified lots 
 
 Single family res- 
 idence except on 
 specified lots 
 
 
 Required for 
 bldgs. and altera- 
 tion by seller 
 
 
 Private garage 
 or greenhouse 
 only 
 
 
 Baker Estates 
 Altoona, Pa. 
 
 signs 
 
 Ardmore 
 
 J. R. Robertson & Co. 
 Chicago, 111. 
 
 
 Residences only 
 except on speci- 
 fied lots 
 
 
 
 $5,000 
 mini- 
 mum 
 
 Garages must be 
 within 10 ft. of 
 rear of house 
 
 
 Arlington Park 
 
 Laudermilk Realty Co. 
 Chicago, 111. 
 
 
 
 
 
 Diff. on 
 diff. lots 
 
 
 
 
 
 Single family res- 
 idences only 
 
 
 
 Sp< ci- 
 fied on 
 certain 
 lots. 
 
 Correspond to 
 house in style. 
 35 ft. from lot 
 lines 
 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 above 
 ground 
 
 
 Yes 
 
 Single family 
 residence only 
 
 2 sto- 
 ries, 
 base- 
 ment 
 
 
 $3,000 
 mini- 
 mum 
 
 
 
 Anchorage, Ky. 
 
 
 
 Yes 
 
 One dwelling per 
 lot; only 2 story 
 apartment 
 
 
 Required by 
 seller for bldgs. 
 and alterations 
 
 
 Garages only 
 
 Fowl 
 
 G. R. Morris Org'n. 
 Baltimore, Md. 
 
 
 Andrews Subdivision 
 
 New Britain, Conn. 
 
 Yes 
 
 Single family and 
 2 flat residences 
 
 2 sto- 
 ries, 
 base- 
 ment, 
 attic 
 
 
 $3,000 
 single 
 $5,000 
 double 
 
 
 livestock 
 
 Avon Center Estates 
 
 H. F. Bowse 
 Cleveland, Ohio 
 
 
 Single family 
 residences only 
 
 
 
 $3,000 
 mini- 
 mum 
 
 Garage min. $200 
 corresp. to house 
 and built after 
 
 Amusement 
 places, liquor 
 
 Aspinwall Hill Subd'n 
 
 Brookline, Mass. 
 
 Yes 
 
 Dwellings 
 
 
 
 $6,000 
 
 min- 
 
 mum 
 
 
 
 Belmont Country Club 
 
 A. T. Mc Intosh Co. 
 Chicago, 111. 
 
 
 
 
 
 $5,000 
 on cer- 
 tain lots 
 
 
 
 
 
 Single family 
 residences 
 
 
 Required by 
 maintenance 
 corporation 
 
 
 2 garages com- 
 bined 
 
 
 Ann Arbor, Mich. 
 
 livestock 
 
 
 Yes 
 
 Single family 
 residences to 
 1950 
 
 
 Required by 
 seller for bldgs. 
 and alterations 
 
 Speci- 
 fied for 
 each lot 
 
 Private garage 
 only; erected 
 after house 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 signs 
 
 Beacon Falls, Conn. 
 
 Yes 
 
 Single family 
 residences 
 
 
 
 
 
 
 
 
 Single family 
 residences 
 
 
 
 $5,000 
 mini- 
 mum 
 
 
 
 Boston, Mass. 
 
 
 Bonnycastle Terrace 
 
 Louisville, Ky. 
 
 Yes 
 
 Single family 
 residences only 
 
 
 
 
 
 Livestock 
 quarrying, 
 saloon 
 
 
 
 Single family 
 residences only; 
 18 exceptions 
 
 
 Required by 
 seller until 
 1944 
 
 Diff. on 
 
 diff. 
 
 lots 
 
 Private appurte- 
 nant only; cor- 
 respond to house 
 
 Fuel tank 
 
 Thorpe Bros. 
 Minneapolis, Minn. 
 
 above 
 ground 
 
 Brookline Hills Subd'n 
 
 Brookline, Mass. 
 
 Yes 
 
 Single family 
 residences 
 
 3 sto- 
 ries 
 
 
 $4,000 
 
 
 
 Cuyahoga View Heights 
 
 Hoiles & Hedden Co. 
 Cuyahoga Falls, Ohio 
 
 Except on 
 specified lots 
 
 Single family 
 residences only; 
 except on some 
 lots 
 
 2 hi sto- 
 ries 
 maxi- 
 mum 
 
 Required by 
 seller for build- 
 ings and altera- 
 tions for 15 yrs. 
 
 Diff. 
 
 on dilT. 
 lots 
 
 One private ga- 
 rage correspond- 
 ing to house 
 
 Oil well 
 
 Colony Hills 
 
 Approved 
 business al- 
 lowed 
 
 Single family 
 residences 
 
 
 Required by 
 trustees 
 
 
 Private garage 
 
 Special list 
 
 Springfield, Mass. 
 
 
 ♦Another interesting restriction is that which requires the buyer to build on the lot within a certain time after purchase (see 
 p. 33). Such a provision is found in the deeds of the following subdivisions: Ardmore, 1 year on specified lots; Cushing's Island, 
 2 years; Lake Wauconda, 1 year; Newton Blvd. Sub'n., 2 years; Sackett Sub'n., 5 years; Sudbrook, 5 years. 
 
RESTRICTIONS ON PHYSICAL DEVELOPMENT 
 
 29 
 
 Table I. Restrictions Pertaining to the Type and Use of Structures {Continued) 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 Business 
 or Trade 
 Prohibited 
 
 Type of 
 Improvement 
 
 Height 
 
 of 
 Build- 
 ings 
 
 Approval of 
 
 Building 
 
 Plans 
 
 Cost 
 
 of 
 Build- 
 ings 
 
 Outbuildings 
 
 Nuisances 
 Pro- 
 hibited 
 
 
 Business 
 prohibited 
 for 10 yrs. 
 
 
 
 
 $3,000 
 
 Private garage 
 only 
 
 Mfr. 
 
 Baltimore, Md. 
 
 livestock 
 
 Cravath Subdivision 
 
 Locust Valley, L. I. 
 
 Yes 
 
 Single family 
 residences 
 
 
 
 
 Appurtenant to 
 country estate 
 
 
 
 
 
 
 
 $2,000 
 
 
 
 Casco Bay, Me. 
 
 Amusements 
 
 
 Yes 
 
 Single family 
 residence; one 
 per lot 
 
 
 Required by 
 seller 
 
 
 
 
 Hogle & Mawdsley 
 Carmel, Cal. 
 
 
 Devonshire Manor Annex 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 Manufac- 
 turing pro- 
 hibited 
 
 Apartments and 
 business on spe- 
 cified lots 
 
 
 Required by 
 seller; brick, 
 stone or tile 
 
 
 Garages may not 
 be used for resi- 
 dence 
 
 Livestock, 
 asylum, etc. 
 
 
 Business al- 
 lowed on 
 certain lots 
 
 Diff. on diff. lots 
 
 Diff. for 
 
 diff. 
 bldgs. 
 
 Required by 
 seller to 1940; 
 brick, tile or 
 stone required 
 
 $8,000 
 for sin- 
 gle res. 
 
 Garages may not 
 be used for resi- 
 dences to 1950 
 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 asylum, etc. 
 to 1950 
 
 
 
 Single family 
 residences on all 
 but specified lots 
 
 
 
 $5,000 
 single 
 res. 
 
 
 
 S. S. Berry 
 Chicago, 111. 
 
 
 
 Prohibited 
 
 Single family 
 residence to 
 1950 
 
 
 Required by 
 seller for bldgs. 
 and alterations 
 
 Diff. for 
 
 diff. 
 
 lots 
 
 Priv. garage and 
 appurtenant 
 bldgs. Not for res. 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 hospital, 
 etc. 
 
 
 Business on 
 specified lots 
 
 Single family 
 residences except 
 on specified lots 
 
 
 
 $6,000 
 for res- 
 idences 
 
 Garage to be 
 built only in 
 conjunction 
 with res. 
 
 
 Chas. P. Gray 
 Chicago, 111. 
 
 
 
 
 Single family 
 residences 
 
 story 
 min. 
 
 Required by 
 seller for bldgs. 
 and alterations 
 
 Diff. for 
 diff. lots 
 
 Correspond to 
 residence 
 
 
 Thorpe Bros. 
 Minneapolis, Minn. 
 
 fuel tank 
 
 above 
 
 ground 
 
 Forest Hills Gardens 
 
 Sage Foundation Homes 
 Long Island 
 
 
 Private res. 
 for not more 
 than 2 families 
 
 
 Required by 
 seller for bldgs. 
 and alterations 
 
 Diff. for 
 diff. lots 
 
 Private garage 
 
 Slaughter 
 
 house, 
 
 livestock 
 
 
 Business on 
 specified lots 
 
 Single family 
 residences 
 
 story 
 min. 
 
 Required by 
 seller for bldgs. 
 and alterations 
 
 Diff. for 
 diff. lots 
 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 asylum, 
 factory 
 
 Freeman Subdivision 
 
 Providence, R. I. 
 
 Yes 
 
 Single family 
 residences 
 
 
 
 
 Garage connected 
 with house rec- 
 ommended 
 
 
 
 
 Single family 
 residences to 
 1935 
 
 
 
 
 Private garage 
 appurtenant 
 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 Great Neck Hills 
 
 Great Neck, L. I. 
 
 Yes 
 
 Single family 
 residences 
 
 
 Required by 
 seller 
 
 $3,500 
 
 to 
 $5,500 
 
 Must conform 
 to residence 
 
 Livestock 
 
 Glen Oaks 
 
 
 Single family 
 residences only 
 
 
 Required by 
 Homes Assn. 
 
 $5,000 
 mini- 
 mum 
 
 Garage may not 
 be erected before 
 house 
 
 
 Guy M. Rush 
 Los Angeles, Cal. 
 
 oil drilling 
 
 Guilford 
 
 
 Private dwell- 
 ings 
 
 
 Required by 
 seller 
 
 Diff. for 
 diff. lots 
 
 Garage 
 
 
 Baltimore County, Md. 
 
 list 
 
 
 Prohibited 
 except on 
 specified lots 
 
 One single fam- 
 ily residence per 
 lot 
 
 
 Required by 
 seller for bldgs. 
 and alterations 
 
 $3,000 
 
 Private appurte- 
 nant; not to be 
 used as res. 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 Harroun Park Subdivision . . . 
 Currier Inv. Co. 
 Detroit, Mich. 
 
 Business on 
 specified lots 
 
 Single family 
 residences on 
 certain streets 
 
 
 
 $3,500 
 
 to 
 $4,500 
 
 Private appurte- 
 nant; erected 
 after house 
 
 Liquor 
 
 Mfr. 
 
 Signs 
 
 Highland Park Addition 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 Single family 
 residences only 
 
 
 Required by 
 seller to i960 for 
 bldgs. and alter- 
 ations 
 
 $10,000 
 
 Garage may not 
 be used as resi- 
 dence 
 
 
3 o DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Table I. Restrictions Pertaining to the Type and Use of Structures (Continued) 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 Business 
 or Trade 
 Prohibited 
 
 Type of 
 Improvement 
 
 Height 
 
 of 
 Build- 
 ings 
 
 Approval of 
 
 Building 
 
 Plans 
 
 Cost 
 
 of 
 Build- 
 ings 
 
 Outbuildings 
 
 Nuisances 
 Pro- 
 hibited 
 
 Howard-Lincoln, etc., Add'n. 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 Business on 
 specified lots 
 
 Apartments on 
 specified lots 
 
 
 Required by 
 seller; brick, 
 stone or tile 
 
 
 Garage may not 
 be used as resi- 
 dence 
 
 Livestock, 
 
 hospital, 
 
 etc. 
 
 Hunting Ridge 
 
 Geo. R. Morris Org'n. 
 Baltimore, Md. 
 
 Yes 
 
 One dwelling per 
 lot; only 2 story 
 apartments 
 
 
 Required by 
 seller for bldgs. 
 and apartments 
 
 
 
 Fowl, hos- 
 pital, etc. 
 
 
 
 Single family 
 residence only 
 
 2 story 
 mini- 
 mum 
 
 Required by 
 seller 
 
 Diff. on 
 diff. lots 
 
 
 
 Bills Realty Co. 
 Chicago, 111. 
 
 
 Kenilworth Hghlds. Subd'n... 
 Wittbold Realty Co. 
 Chicago, 111. 
 
 
 
 
 
 
 
 Mfr. 
 
 Livestock 
 
 Billboards 
 
 A. H. Kraus Co 
 
 
 
 
 
 Diff. on 
 diff. lots 
 
 In connection 
 with residence 
 
 Signs 
 
 Chicago, 111. 
 
 
 
 
 Dwellings 
 
 30 ft. 
 from 
 ground 
 
 Required by 
 seller 
 
 $1,500 
 
 to 
 $1,000 
 
 
 Liquor 
 
 Perry Park, Colo. 
 
 
 
 
 
 
 
 $8,500 
 
 to 
 $10,000 
 
 
 
 B. H. Laudermilk Co. 
 Chicago, 111. 
 
 
 Oakland, Cal. 
 
 
 Single family 
 residence 
 
 
 Required by 
 seller 
 
 $3,000 
 
 to 
 $5,000 
 
 
 Special list 
 
 
 
 One single fam- 
 ily residence per 
 lot 
 
 
 
 $3,000 
 mini- 
 mum 
 
 Private green- 
 house and ga- 
 rage 
 
 Livestock 
 
 Blair Homes Co. 
 Altoona, Pa. 
 
 billboards 
 
 
 
 Single family 
 residence 
 
 2 sto- 
 ries, at- 
 tic, cel- 
 lar 
 
 
 $5,000 
 mini- 
 mum 
 
 
 Saloon, 
 
 Seattle, Wash. 
 
 Factory 
 Hospital 
 
 Maple Hill . . 
 
 
 Single family 
 residence 
 
 
 Required by 
 
 seller 
 
 Diff. for 
 diff. lots 
 
 Private garage 
 
 Liquor, 
 
 F. B. McKibbin Co. 
 Lansing, Mich. 
 
 Livestock 
 
 
 Yes 
 
 Single family 
 residence 
 
 
 
 $7,500 
 
 Conform to 
 house 
 
 No quarry 
 
 Spokane, Wash. 
 
 
 
 Business 
 prohibited 
 
 Single family 
 residence — one 
 per lot 
 
 
 
 Diff. for 
 diff. lots 
 
 3 ft. from rear 
 line 
 
 Billboards 
 
 Little Rock, Ark. 
 
 
 Milwaukee-Howard, Subd'n.. 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 Yes, except 
 on specified 
 lots 
 
 Apartments on 
 specified lots 
 
 
 Required by 
 seller; brick, 
 stone or tile 
 
 
 Garage may not 
 be used for resi- 
 dence 
 
 Hospital, 
 Livestock 
 
 
 Yes 
 
 Single family 
 residence 
 
 
 Required by 
 seller 
 
 
 
 
 Lake Wales, Florida 
 
 
 Morningside Heights 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 Single family 
 residence 
 
 
 
 
 Private appur- 
 tenant 
 
 
 Newton Blvd. Subd'n 
 
 Newton, Mass. 
 
 Yes 
 
 Single family 
 residence 
 
 3 sto- 
 ries 
 
 
 $5,000 
 
 
 Livestock 
 
 Oak Hill Village . . 
 
 Yes 
 
 Single family 
 residence 
 
 
 Required by 
 seller 
 
 $12,500 
 mini- 
 mum 
 
 Private appurte- 
 nant 
 
 Signs 
 
 Arnold Hartman 
 Boston, Mass. 
 
 
 
 Yes 
 
 Single family 
 residence 
 
 3 sto- 
 ries 
 max. 
 
 Required by 
 seller 
 
 
 Private appurte- 
 nant 
 
 
 F. W. Norris Co. 
 Boston, Mass. 
 
 
 Pacific Southwest Bank 
 
 Los Angeles, Cal. 
 
 Business on 
 specified lots 
 
 Diff. on diff. lots 
 
 
 
 Diff. for 
 
 diff. 
 
 uses 
 
 
 Liquor, 
 Signs 
 
 Palos Verdes Estates 
 
 Los Angeles, Cal. 
 
 Business on 
 specified lots 
 
 Single family 
 residence 
 
 
 Required by Art 
 Jury & Homes 
 Assn. 
 
 Diff. for 
 
 diff. 
 
 lots 
 
 
 Signs, 
 Factories, 
 Oil drills 
 
 
 Yes 
 
 Single family 
 residence 
 
 
 Required by 
 seller 
 
 $10,000 
 mini- 
 mum 
 
 Usually at- 
 tached; private 
 appurtenant 
 
 
 Jemison & Co. 
 Birmingham, Ala. 
 
 
RESTRICTIONS ON PHYSICAL DEVELOPMENT 
 
 3i 
 
 Table I. Restrictions Pertaining to the Type and Use of Structures {Continued) 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 Business 
 or Trade 
 Prohibited 
 
 Type of 
 Improvement 
 
 Height 
 
 of 
 Build- 
 ings 
 
 Approval of 
 
 Building 
 
 Plans 
 
 Cost 
 
 of 
 Build- 
 ings 
 
 Outbuildings 
 
 Nuisances 
 Pro- 
 hibited 
 
 Roland Park 
 
 Business 
 prohibited 
 
 Dwellings 
 
 
 
 Diff. for 
 diff. lots 
 
 
 Livestock 
 
 Baltimore County, Md. 
 
 
 
 Yes 
 
 Private dwelling 
 house 
 
 2 sto- 
 ries 
 max. 
 
 Required by 
 Homes Ass'n 
 
 $4,000 
 mini- 
 mum 
 
 Private appurte- 
 nant; not built 
 before house 
 
 Liquor 
 
 Mason-McDuffie Co. 
 San Francisco, Cal. 
 
 Livestock, 
 Factory 
 
 
 
 
 
 
 
 
 
 Louisville, Ky. 
 
 
 
 Yes 
 
 One dwelling 
 house per lot; no 
 apt. or duplex 
 
 
 Required by 
 seller to 1935 
 
 Diff. for 
 diff. lots 
 
 Garage appur- 
 tenant 
 
 Saloon, 
 
 New York City 
 
 Factory 
 
 
 Yes 
 
 Single family 
 residence 
 
 3 sto- 
 ries 
 
 
 $3,000 
 
 
 Livestock 
 
 Baltimore County, Md. 
 
 
 
 
 One single fam- 
 ily residence per 
 lot 
 
 2 sto- 
 ries 
 min. 
 
 Required by 
 seller 
 
 
 Private garage; 
 conforming to 
 house 
 
 
 Van Sweringen Co. 
 Cleveland, Ohio 
 
 
 
 Yes 
 
 
 
 
 $500 
 
 to 
 $2,000 
 
 
 
 Calgary, Alberta 
 
 
 S. Bloomfield Highlands 
 
 Michigan Inv. Co. 
 Detroit, Mich. 
 
 
 Single family 
 residence 
 
 Related 
 to foun- 
 dation 
 
 Required by 
 seller; brick or 
 stone material 
 
 
 Private appur- 
 tenant 
 
 
 
 
 Single family 
 residence 
 
 
 
 Diff. for 
 diff. lots 
 
 Private garage 
 appurtenant 
 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 Sunnymede 
 
 Whitcomb & Keller 
 S. Bend, Ind. 
 
 
 
 
 Required by 
 seller for bldg. 
 and alterations 
 
 
 Garage not to be 
 erected before 
 house 
 
 Livestock 
 
 Sunnyside 
 
 City Housing Corp. 
 New York City 
 
 
 
 
 
 
 
 
 
 Yes 
 
 Single family 
 residence 
 
 
 
 $6,500 
 
 
 Livestock, 
 
 N. Andover, Mass. 
 
 Signs 
 
 Tilden Realty Corp 
 
 Utica, N. Y. 
 
 
 Single family 
 residence 
 
 
 
 $14,000 
 
 $10,000 
 
 $5,000 
 
 Garage 
 
 
 Sunset Hill 
 
 
 Single family 
 residence 
 
 
 Stated in individ- 
 ual deeds or con- 
 tracts 
 
 Diff. for 
 diff. lots 
 
 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 
 
 Yes 
 
 Dwellings 
 
 2 sto- 
 ries 
 
 
 $5,000 
 
 
 Saloon, 
 
 Victoria, B. C. 
 
 Livestock, 
 Signs 
 
 
 Yes 
 
 Single family 
 residence 
 
 
 
 $7.5oo 
 
 Garage; conser- 
 vatory 
 
 
 Wellesley, Mass. 
 
 Signs 
 
 Valencia Park 
 
 Bowie & Trent 
 San Benito, Tex. 
 
 Yes, except 
 on specified 
 lots 
 
 Single family 
 residence 
 
 
 
 $3,500 
 
 to 
 $5,000 
 
 Private appurte- 
 nant; may not 
 be used for res. 
 
 
 
 
 Single family 
 residence 
 
 2 sto- 
 ries 
 
 
 $10,000 
 $15,000 
 $20,000 
 
 
 
 Scarborough, N. Y. 
 
 
 Vinsetta Park Subd'n 
 
 Vinsetta Land Co. 
 Detroit, Mich. 
 
 Business on 
 specified lots 
 
 One dwelling; 
 not more than 
 2 apts. 
 
 
 Required by 
 seller 
 
 Diff. on 
 
 diff. 
 
 streets 
 
 
 
 Los Angeles, Cal. 
 
 
 Single family 
 residences except 
 on specified lots 
 
 
 
 Diff. for 
 
 diff. 
 
 uses 
 
 
 Livestock 
 
 
 Business on 
 specified lots 
 
 Use classification 
 of lots 
 
 
 Required by 
 seller 
 
 Speci- 
 fied for 
 each lot 
 
 Garages only on 
 residence lots 
 
 Mfr. 
 
 Woodmar Realty Co. 
 Hammond, Ind. 
 
 Liquor 
 Billboards 
 
 
 Business on 
 specified lots 
 
 Single family 
 residences; apts. 
 on certain lots 
 
 
 No frame con- 
 struction al- 
 lowed 
 
 $5,000 
 
 Private appur- 
 tenant 
 
 
 William Zelosky 
 Chicago, 111. 
 
 
 Westwood Subdivision 
 
 Van Alstine Land Co. 
 Detroit, Mich. 
 
 Business on 
 specified lots 
 
 Diff. on diff. lots 
 
 
 
 Diff. for 
 
 diff. 
 
 uses 
 
 Private appur- 
 tenant; erected 
 after house 
 
 
3 2 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 the keeping of chickens, the erection of 
 billboards, fuel tanks above ground, etc., 
 as well as other items not so obviously 
 detrimental to residence use. Manu- 
 facturing, as a prohibited use, is fre- 
 quently found among the list of nuis- 
 ances, along with hospitals, asylums and 
 other institutional uses. An examination 
 of the lists shows that they reflect local 
 prejudices quite definitely. An example 
 is to be found in the restrictions on 
 properties in northeastern Ohio, where a 
 prohibition against gas and oil drilling 
 is found, as a result of a drilling fever 
 which swept that section about 15 years 
 ago and peppered it with unsightly der- 
 ricks. It is with a view to meeting local 
 situations such as this that lists of 
 nuisances should be compiled in order 
 to be most effective. 
 
 If the subdivision is to be purely 
 residential, a blanket restriction is fre- 
 quently drawn, prohibiting the use of 
 any structure for purposes of business 
 or trade. Two or three typical restric- 
 tions of this character may be cited: 
 
 "The party of the second part shall not at 
 any time conduct or permit to be conducted 
 upon said premises any trade or business." 2 
 
 "No building erected or placed thereon 
 shall be used for any business, trade, manu- 
 facturing, mercantile or mechanical pur- 
 poses . . ." 3 
 
 "This property shall be used for residence 
 purposes only and not for any purpose 
 of business or trade." 4 
 
 However, a subdivision may be de- 
 signed primarily for residential purposes 
 and still include a limited number of 
 business sites. At this point the de- 
 veloper exercises his zoning power by 
 determining how much business area 
 he will set aside and also where it shall be 
 located. A common method of describ- 
 ing both amount and location is by 
 
 2 Deven Heights, Hogle & Mawdsley, Carmel, Cal. 
 
 3 Oak Hill Village, Arnold Hartman, Boston, Mass. 
 
 4 Redmont Park, Jemison & Co., Birmingham, Ala. 
 
 reference to the recorded plat of the 
 subdivision or, in cases where no such 
 recording has taken place, by reference 
 to street frontage. Examples of each of 
 these methods follow. 
 
 ". . . nor shall any of said property 
 . . . be used for any purpose other than 
 residence purposes, except that Lots Nos. 
 245 to 253, inclusive, as shown on said Map 
 may be devoted to the purposes and uses 
 specified and permitted for the Class 5 busi- 
 ness district provided and established by 
 Ordinance 227 . . ." a 
 
 "It is mutually agreed that for a period of 
 twenty (20) years from date hereof, that lots 
 facing on Palatine (Central) Road may be 
 used for business purposes, . . ." 6 
 
 Next comes the question of residential 
 uses and whether or not other than 
 single-family residences shall be per- 
 mitted. In subdivisions which include 
 both single- and multi-family houses the 
 procedure, so far as the restrictions are 
 concerned, is similar to that used in 
 designating business uses and business 
 location. The deed will refer to the 
 recorded plat or specify certain streets 
 for the location of multi-family units. 
 When a variety of uses is allowed, sub- 
 dividers are usually quite careful in their 
 terminology, specifying apartment use, 
 two-family, or three-family buildings. 
 The mere fact of having to distinguish 
 between two or more types of use makes 
 clear-cut terminology necessary. 
 
 But when it is desired to set aside an 
 area for single-family residences a wide 
 variety of terms is used, frequently re- 
 sulting in difficulties. The term "dwel- 
 ling," for example, is often used but it 
 may be construed to mean a single 
 building which may house more than one 
 family quite as easily as to mean a single- 
 family residence which was probably 
 the subdivider's intention. Likewise the 
 terms "family residence" and "residen- 
 
 6 Fernside, Fred T. Wood Co., Oakland, Cal. 
 
 6 Fairview Addition, Chas. P. Gray Co., Chicago, 111. 
 
RESTRICTIONS ON PHYSICAL DEVELOPMENT 
 
 33 
 
 tial purposes" are liable to misconstruc- 
 tion. It therefore behooves the sub- 
 divider to take great pains in phrasing 
 the clause which designates certain lots 
 for single-family residence use. A par- 
 ticularly good statement of this restric- 
 tion is found in covenants for the 
 Armour Hills property of the J. C. 
 Nichols Investment Co. of Kansas City: 
 
 "None of said lots may be improved, used 
 or occupied for other than private residence 
 purposes, and no flat nor apartment house, 
 though intended for residence purposes may 
 be erected thereon. Any residence erected or 
 maintained thereon shall be designed for 
 occupancy by a single family." 
 
 Such a statement as this is sometimes 
 further strengthened by an addition to 
 the effect that only one such residence 
 shall be placed on a lot. 7 
 
 Finally, consideration of the type and 
 use of structures must include the regu- 
 lations with respect to outbuildings: 
 What kinds shall be permitted, to what 
 uses may they be put, by whom may they 
 be used and when shall they be built? 
 Although occasional mention is made of 
 greenhouses, garages are the most im- 
 portant form of outbuildings and most 
 restrictions are concerned with their 
 regulation. Most of the restrictions state 
 that private garages, for use only by 
 occupants of the house, may be built, 
 with occasional reference to capacity, 
 as two- or three-car garages. Some re- 
 strictions state that the garage shall con- 
 form to the type of architecture of the 
 house and shall be attached to the house 
 or located on the lot with special refer- 
 ence to the house or building lines. An- 
 other very important group of regula- 
 tions consists of those which stipulate 
 when the garage shall be built or for 
 what it shall be used. An increasingly 
 
 7 "Only one single family residence shall be erected 
 on each individual lot." (Locust Hills, Blair Homes Co., 
 Altoona, Pa.) 
 
 common restriction states that the ga- 
 rage shall not be built before the house 
 and /or that the garage shall not be used 
 for residential purposes. 
 
 "No accessory building or outhouse of any 
 kind shall be erected and maintained on any 
 lot prior to the erection of the main residence 
 thereon." 8 
 
 "No garage, barn or other outbuilding, 
 erected on said lot, shall at any time be used 
 for residential purposes." 9 
 
 Restrictions of this type have grown up 
 to meet a situation of fairly recent origin 
 in which lot purchasers have bought the 
 land, erected a garage and used it for 
 a residence while accumulating funds for 
 the construction of the house. The chief 
 difficulty which may arise as a result of 
 failure to include such a restriction as 
 this is the construction of buildings of 
 this type before the completion of im- 
 provements. Prevention of such con- 
 tingencies is obviously desirable. From 
 the point of view of selling the balance 
 of the lots in a subdivision the erection 
 of garage-residences is a distinct handi- 
 cap in the development of a high-class 
 subdivision. On the other hand, in 
 a subdivision designed for lower income 
 groups permission to erect such struc- 
 tures may be an aid in disposing of re- 
 maining lots. In such instances the 
 number of prospective purchasers will 
 be increased because they will not have 
 to wait to acquire funds for both house 
 and lot before purchasing. 
 
 After planning for the types of struc- 
 tures and the uses to which they may be 
 put, the developer proceeds to regulate 
 the construction of these buildings. An 
 occasional restriction stipulates that 
 building shall be started within a speci- 
 fied time after the purchase of the land. 
 The purpose of this restriction is obvi- 
 
 8 Glen Oaks, Guy M. Rush, Los Angeles, Cal. 
 
 9 Milwaukee-Howard-Harlem-Subdivision, Krenn & 
 Dato, Chicago, 111. 
 
34 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 ously to insure improvement of the area 
 within a relatively short time. This 
 would, of course, redound to the benefit 
 of the subdivider, for it is easier to sell 
 the remaining lots in a subdivision when 
 construction and utilization are under 
 way. Only one such restriction is found 
 among the 55 subdivisions which are the 
 most recent developments and of the 
 five such restrictions in the 29 Olmsted 
 subdivisions none are found later than 
 1 91 7. Furthermore, the one recent sub- 
 division does not make a blanket restric- 
 tion requiring construction to take place 
 within a certain time on all lots. In- 
 stead this subdivider has reserved cer- 
 tain lots which may be sold only to 
 purchasers who agree to build within 
 one year. 10 An examination of the plat 
 reveals that the lots so reserved are 
 scattered over the subdivision, their loca- 
 tions being determined probably by the 
 fact that buildings erected on these sites 
 would be strategic from the point of 
 view of inducing further building. It 
 would be interesting to know whether 
 any concessions were made in the prices 
 of these lots to compensate for the addi- 
 tional restriction. This restriction is an 
 attempt on the part of the subdivider to 
 have lot purchasers share with him the 
 responsibility of pioneering in the new 
 development. But the general attitude 
 of regarding this as a responsibility 
 primarily of the subdivider may explain 
 in part the very few instances of this 
 type of control. 
 
 The inference to be derived from the 
 disappearance of this restriction is that it 
 retarded too much the sale of lots. The 
 question might be raised as to whether 
 greater use of this device might not be 
 desirable to curb the speculative char- 
 acter of land sales. The insertion of a 
 time limit for building indicates sale for 
 
 I0 Arclmore, John R. Robertson & Co., Chicago, 111. 
 
 use and not for speculation. It protects 
 the lot purchaser who wishes to build 
 promptly from a long period of pioneer- 
 ing. In other words, the man who builds 
 as soon as the subdivision is opened often 
 has to wait several years before enough 
 other structures are built in the area to 
 give him any of the advantages of a com- 
 munity development. The time limit on 
 building would benefit the consumers of 
 this class. The immediateness of im- 
 provement has long been the stock 
 argument of the subdivision salesman. 
 Such a restriction writes this statement 
 of the salesman into the contract. It 
 thus becomes binding upon all the lot 
 purchasers who thus secure for them- 
 selves the advantages derived from 
 prompt building. 
 
 By far the most important restriction 
 upon construction is that which requires 
 the approval of building plans. A state- 
 ment in a report by Olmsted Brothers 
 sums up the case for the approval of 
 building plans. 
 
 "Of all the restrictions that have been 
 devised to regulate or limit the uses of land 
 for the purpose of maintaining high average 
 values in a community, one of the most im- 
 portant, certainly the most broadly inclusive, 
 and when skillfully employed the most 
 effective, is a reservation to the vendor de- 
 velopment company, or to some other agency 
 acting for the common benefit of all property 
 owners, of the power to veto the execution 
 of plans for improvements which in the 
 opinion of that agency would detrimentally 
 affect the attractiveness and consequent land 
 values of the neighborhood for the general pur- 
 poses which may have been chosen as ap- 
 pealing most strongly to the market to which 
 the development is intended to cater." 11 
 
 The importance of the restriction is 
 further attested by the fact that 39, or 
 almost half, of the 84 deeds analyzed 
 contain such clauses. It should be noted, 
 however, that this high percentage may 
 
 11 "Restrictions for Residential Subdivisions," p. 3 
 (I925)- 
 
RESTRICTIONS ON PHYSICAL DEVELOPMENT 
 
 35 
 
 be the result in large part of the nature 
 of the sources from which these restric- 
 tions were collected. Further examina- 
 tion of the facts reveals an interesting 
 trend. Thirty-two of the 55 more recent 
 deeds contain a requirement for ap- 
 proval of building plans, whereas only 
 seven of the 29 in the Olmsted group 
 contain such clauses, all of which are 
 dated since 1908. In other words, in so 
 far as any generalization may be made 
 from so small a sample, it may be said 
 that this device is comparatively new 
 and that its use is increasing. 
 
 The best of these restrictions are quite 
 inclusive. They cover approval not only 
 of the original structures but also of 
 alterations thereto. A typical clause runs 
 as follows: 
 
 "No building, fence, wall or other struc- 
 ture shall be commenced, erected or main- 
 tained, nor shall any addition to or change or 
 alteration therein be made, until the plans 
 and specifications, showing the nature, kind, 
 shape, height, materials, floor plans, color 
 scheme, location and approximate cost of 
 such structure and the grading of the plot 
 to be built upon shall have been submitted to 
 and approved by Whitcomb and Keller, and 
 a copy thereof, as finally approved, lodged 
 permanently with Whitcomb and Keller. 
 Whitcomb and Keller shall have the right 
 to refuse to approve any such plans or 
 specifications or grading plan, which are not 
 suitable or desirable, in its opinion, for aes- 
 thetic or other reasons; and in so passing 
 upon such plans, specifications and grading 
 plans, it shall have the right to take into 
 consideration the suitability of the proposed 
 building or other structure, and of the ma- 
 terials of which it is to be built, to the site 
 upon which it is proposed to erect the same, 
 the harmony thereof with the surroundings 
 and the effect of the building or other struc- 
 ture as planned, on the outlook from the 
 adjacent or neighboring property. A land- 
 scape development plan shall be submitted 
 to and approved by Whitcomb and Keller be- 
 fore any landscaping is actually executed." 12 
 
 Harmonious development is obviously 
 
 12 Sunnymede, Whitcomb & Keller, South Bend, Ind. 
 
 promoted if these powers are carefully 
 administered. 
 
 From the point of view of the pur- 
 chaser two considerations should be 
 noted. There is valuable sales psychol- 
 ogy in this restriction. Each individual 
 purchaser is prone to feel that his own 
 taste in residence design is quite un- 
 impeachable, but he is not so sure about 
 his neighbor. The existence of this 
 restriction assures him that his neighbor 
 will not erect an architectural atrocity 
 which will lessen the amenities of his 
 own improvement. 
 
 The second concern of the purchaser 
 is a corollary of this. It has to do with 
 the purchaser's confidence in the sub- 
 divider with respect to performing the 
 duties placed upon him by this restric- 
 tion. The success of this restriction is 
 dependent upon the performance of the 
 subdivider or of the agent whom he has 
 charged with the administration of this 
 covenant. If high standards are main- 
 tained in the early improvements, the 
 sale of the last lots will be materially 
 aided. If, on the other hand, the restric- 
 tion is loosely administered, it will 
 destroy confidence in the subdivider and 
 although his immediate sales may be 
 speeded up by the lowering of the stand- 
 ards, he will lose the clientele to which 
 he was appealing originally. 
 
 An important consideration in con- 
 nection with this restriction is the agency 
 for administering it. If there is con- 
 fidence in the subdivider then adminis- 
 tration by him is the easiest way to 
 handle the problem. However, his 
 interest is apt to lag as the lots are sold 
 out and in order to get out more quickly, 
 he may be tempted to lower his stand- 
 ards toward the end. 
 
 Administration by an association of 
 the lot owners also presents difficulties. 
 Although this may be a sales asset, it is 
 difficult to handle, particularly in the 
 
36 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 early stages of the development. On the 
 other hand, if such an association is not 
 formed until the lots are nearly disposed 
 of, the subdivider may again let down 
 the bars before withdrawing in favor of 
 the owners' association. 
 
 The third alternative for administer- 
 ing this restriction is by an Art Jury. 
 The chief problem is to secure an ade- 
 quate personnel for such a body and 
 this is especially difficult when the sub- 
 division is not near a large city. 
 
 Another administrative problem has 
 to do with the cost involved in approv- 
 ing plans. The approval of a large num- 
 ber of building plans involves consider- 
 able outlay. Olmsted Brothers in their 
 report have suggested that a fee be 
 charged for such approval. This would 
 be particularly useful when the sub- 
 divider's interest begins to decline and 
 he cannot be expected to bear the 
 financial burden involved. It is also a 
 desirable expedient if the administration 
 is in the hands of an owners' associa- 
 tion, for such an organization has no 
 funds out of which to meet such expenses. 
 
 This matter of approval of building 
 plans is being approached from a different 
 angle. The development of architec- 
 tural control as it has been worked out 
 on the Palos Verdes Estates in Cali- 
 fornia is the outstanding example. Since 
 the broad outlines of this method were 
 traced in Chapter II, the additional 
 discussion here is intended only to show 
 the wide scope of this control. The 
 purpose is not to require the use of a 
 particular style of architecture but 
 rather to encourage the development of 
 a style suited to California conditions. 
 In order to secure harmony within a 
 given district the height of the roof has 
 been the determining factor. In other 
 words, three different residence districts 
 are described in terms of high roof, 
 medium roof, or low roof. This consti- 
 
 tutes rather a far-reaching measure of 
 control but it seems to be successful. 
 
 Although no court cases have arisen 
 to test this control, certain decisions are 
 considered to pave the way for a favor- 
 able verdict. Proponents of archi- 
 tectural control base their confidence in 
 its legality largely on the fact that 
 restrictions requiring approval of build- 
 ing plans have been sustained in some 
 courts. A leading Maryland case is 
 usually quoted on this point: 
 
 "The second part of the by-law provides 
 that the design of the building shall be ap- 
 proved by the directors. The object of this 
 provision . . . was to secure the erec- 
 tion of a better class of buildings with at- 
 tractive surroundings, and to prevent the 
 erection of inferior buildings that might 
 diminish the value of the property and affect 
 its eligibility for building purposes. It was 
 intended not only for the benefit of the lessor 
 and the company, but for the common ad- 
 vantage and protection of all persons coming 
 in or taking title under the company . 
 And in addition to this we may add, that it 
 is perfectly competent for the company in 
 selling or leasing the property, to provide in 
 the lease or conveyance or by agreement, for 
 the erection of buildings according to a 
 certain designated plan or design 
 So the only objection that the defendant can 
 fairly make to the title offered by the com- 
 pany is the restriction which requires the 
 design of the building to be erected by him to 
 be submitted for the approval of the direc- 
 tors . . . The general rule deducible 
 from the authorities seems to be that where 
 the intention of the parties is clear, and the 
 restrictions within reasonable bounds, they 
 will be upheld. In our opinion the covenant 
 involved in this case meets these tests." 13 
 
 Other more recent decisions 14 likewise 
 uphold the validity of restrictions re- 
 quiring approval of building plans. It 
 remains for actual experience to prove 
 whether a defense based on these 
 
 13 Peabody Heights Co. v. ll'illson, 82 Md. 186 at 202, 
 203 and 204 (1895). 
 
 14 Harmon v. Burow, 262 Pa. 188 (1919); Jones 0. 
 Northwest Real Estate Co., 149 Md. 271, 131 AtL 446 
 (1925)- 
 
RESTRICTIONS ON PHYSICAL DEVELOPMENT 
 
 37 
 
 grounds will result in judicial approval 
 of architectural control as it has been 
 developed in California. 
 
 A comparison of the two forms of 
 control — the approval of building plans 
 and architectural control — raises sev- 
 eral interesting questions. The approval 
 of building plans is open to the danger of 
 arbitrary administration, for it gives 
 very wide powers to the enforcing 
 agency. On the other hand, if carefully 
 administered, it offers an opportunity 
 for a greater variety of building construc- 
 tion while retaining a harmonious and 
 pleasing general effect. Architectural 
 control would seem to afford somewhat 
 less elasticity in design. But from the 
 point of view of the powers conferred it 
 appears less drastic, in that it requires 
 the establishment and publication of 
 certain standards of construction which 
 may be definitely known by the prospec- 
 tive purchaser of a lot. 
 
 Economically either method of control 
 must be tested in the light of its effect 
 upon land values. The problem in draft- 
 ing such restrictions is to strike the 
 proper balance between control which 
 will stabilize values and control which 
 will constitute an interference with, and 
 thus an impairment of, values. 
 
 Two other restrictions sometimes ap- 
 plied to the construction of residences 
 deserve attention. One is a stipulation 
 as to the height of the building; some- 
 times expressed in feet, sometimes in the 
 number of stories. The need for this 
 restriction may be questioned in cases 
 where the approval of building plans is 
 required. But it is not uncommon to 
 find both types of restrictions in the 
 same deed. 
 
 The other restriction to be con- 
 sidered is that which stipulates the 
 minimum cost of the buildings to be 
 erected on the subdivision. Two meth- 
 ods are employed in applying this re- 
 
 striction; a blanket minimum may be set 
 for all residences to be built in the subdi- 
 vision or a schedule may be prepared set- 
 ting forth specific minimum costs for each 
 lot or block of lots. Of these two methods 
 the second is clearly the better, for there 
 are but few subdivisions in which all lots 
 warrant equal treatment as to the im- 
 provements to be erected on them. The 
 value of a restriction in terms of mini- 
 mum cost may be questioned. The main 
 argument in its favor is that such a 
 restriction may be valuable from the 
 point of view of advertising and sales 
 psychology. This will depend upon the 
 local market conditions. On the other 
 side, proponents of a minimum cost of 
 building clause must answer the ques- 
 tion: Is this an effective device for en- 
 forcing the developer's plan? In the 
 first place, it is very difficult to deter- 
 mine the actual value of a structure in 
 dollars. Furthermore, such a restriction 
 does not insure an attractive or har- 
 monious improvement. A lot purchaser 
 may comply with or even exceed the 
 minimum cost set by the agreement and 
 yet his residence may be a positive blot 
 on the subdivision. Another obstacle to 
 the usefulness of this stipulation is the 
 changing value of the dollar, which may 
 make a $5,000 minimum, for example, 
 totally inadequate to provide a desirable 
 improvement in harmony with the plan 
 for the development. In a subdivision 
 which is quickly sold out and built up a 
 stipulation as to the cost of improvement 
 may be workable but it is of doubtful 
 value in a slow development. Finally, 
 this restriction is of minor significance 
 when approval of building plans is re- 
 quired. 
 
 Restrictions on Use of the Lot Area 
 
 When deeds contain only a very 
 limited number of restrictive clauses, 
 setback provisions are almost invari- 
 
38 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 ably among the regulations included. 
 Building lines are by far the most im- 
 portant of the restrictions pertaining to 
 the use of the lot area. Probably they 
 are likewise the most difficult to draft. 
 There are two principal ways of estab- 
 lishing these lines. One is by drafting 
 or writing them in the plat of the sub- 
 division which is filed in the office of the 
 county recorder. The other is to insert 
 them in the deeds conveying the prop- 
 erty. The former procedure needs no 
 proof to show that such restrictions are 
 part of a general scheme for the develop- 
 ment of the area. They are enforceable 
 by and against all grantees of the subdi- 
 vide^ and are binding upon subsequent 
 purchasers with notice, even though 
 they are not mentioned in the convey- 
 ances. 
 
 It is somewhat more difficult, how- 
 ever, to show beyond question of a doubt 
 that building lines established by re- 
 strictive clauses in deeds are in pursu- 
 ance of a general scheme. Special care 
 must therefore be exercised in framing 
 these agreements to prove that their 
 purpose is to promote a balanced plan 
 for the entire development. But in spite 
 of this possible difficulty the method of 
 establishing building lines by clauses in 
 the instruments conveying the property 
 seems preferable. It permits more careful 
 definition, particularly in subdivisions 
 where the developer has taken pains to 
 work out his general scheme in terms of 
 the requirements for each lot. When 
 such building line clauses are part of a 
 general scheme, they may be enforced by 
 all grantees of the subdivides 15 
 
 The two main elements in building 
 lines are the front building line and the 
 side building line. The front line is im- 
 portant, of course, because of its relation 
 to the general appearance of the sub- 
 division. The side building line, while 
 
 16 Van Sant v. Rose, 260 111. 401 (1913). 
 
 also contributing to the amenities of the 
 layout, is more important from the point 
 of view of securing adequate light and 
 air for the individual lot owners. The 
 differences in purpose of the two types 
 are reflected in the terminology which is 
 sometimes used to describe them. The 
 front building line is frequently referred 
 to as the setback line while the side 
 building lines are often treated under the 
 heading of "free spaces." The front 
 building line should be platted with ref- 
 erence to topography and particularly to 
 street plan, for setback restrictions on lots 
 fronting on a major thoroughfare may 
 well be greater than on lots fronting on 
 minor streets. The side building lines are 
 determined largely by the lot width, 
 which in turn is determined by land val- 
 ues and general character of the devel- 
 opment. Their main purpose is to pre- 
 vent building too far to one side of the lot 
 or too close to the adjoining residences. 
 
 Another classification of building line 
 restrictions may be made with reference 
 to their inclusiveness or the care with 
 which they are drawn. Three groups 
 may be distinguished. The first is com- 
 posed of blanket restrictions which 
 establish a single building line for all lots. 
 The second group consists of restrictive 
 clauses which designate front and side 
 building lines with occasional reference 
 to projections. The third classification 
 includes those restrictions which estab- 
 lish building lines for each lot separately. 
 
 An example of restrictions of the first 
 class is one which establishes a "20-foot 
 building line on all residential lots." 16 
 Such a procedure suggests several diffi- 
 culties. In the first place, it ignores 
 completely any topographical irregulari- 
 ties. Furthermore, it makes no provi- 
 sion for questions which will inevitably 
 arise, such as: May the lower step rest 
 
 16 Arlington Park, B. H. Laudermilk Realty Associa- 
 tion, Chicago, Illinois. 
 
RESTRICTIONS ON PHYSICAL DEVELOPMENT 39 
 
 Table II. Restrictions Pertaining to the Use of the Lot Area* 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 Building Lines 
 
 Projections 
 
 Lot 
 Frontage 
 
 Percent, of 
 Lot Area 
 Covered 
 
 Further 
 Subdi- 
 vision 
 
 Public 
 Areas 
 
 Ease- 
 ments 
 
 Baker Estates 
 Altoona, Pa. 
 
 Recorded on plat 
 
 5 ft. beyond bldg. 
 line for enclosed 
 porch 
 
 
 80% lot 
 width 
 
 Prohibited 
 
 
 5 ft. rear 
 3 ft. side 
 
 
 25 ft. on all lots 
 
 
 
 
 
 
 
 J. R. Robertson & Co. 
 Chicago, 111. 
 
 
 Arlington Park 
 
 Laudermilk Realty Co. 
 Chicago, 111. 
 
 20 ft. on all resi- 
 dence lots 
 
 
 
 
 
 
 
 
 Recorded on plat 
 
 Diff. amts. for diff. 
 types of projec- 
 tions 
 
 45 ft. min. 
 on spec, 
 sts. 
 
 80% lot 
 width 
 
 
 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 
 Anchorage Heights 
 
 Anchorage, Ky. 
 
 Main walls 10 ft. 
 from side and rear 
 lines. 100 ft. from 
 street 
 
 Diff. amts. for diff. 
 types of projec- 
 tions 
 
 
 
 Pro- 
 hibited 
 
 Title re- 
 served by 
 seller 
 
 
 Ashburton 
 
 G. R. Morris Org'n 
 Baltimore, Md. 
 
 
 
 50 ft. min- 
 imum 
 
 
 
 
 
 
 
 
 
 
 Only with 
 consent 
 of seller 
 
 
 5 ft. side 
 
 New Britain, Conn. 
 
 or rear 
 
 Avon Center Estates 
 
 H. F. Bowse 
 Cleveland, Ohio 
 
 30 ft. front, 3-8 ft. 
 side depending on 
 drive 
 
 
 
 
 
 
 
 Aspinwall Hill Sub'n 
 
 Brookline, Mass. 
 
 
 
 
 
 
 Title re- 
 served by 
 seller 
 
 
 Belmont Country Club 
 
 A. T. Mc Intosh Co. 
 Chicago, 111. 
 
 35 ft. building line 
 on all but specified 
 lots 
 
 
 
 
 
 
 On record 
 
 Barton Hills 
 
 Ann Arbor, Mich. 
 
 Main walls 25 ft. 
 from street. 10 ft.- 
 20 ft. from side and 
 rear 
 
 
 
 
 
 Title re- 
 served 
 by seller 
 
 
 
 Specified for each 
 lot 
 
 
 
 
 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 
 Main walls 15 ft. 
 from streets 
 
 
 
 
 
 
 
 Beacon Falls, Conn. 
 
 
 
 25-50 ft. from 
 street line depend- 
 ing on depth 
 
 
 
 
 
 
 
 Boston, Mass. 
 
 
 Louisville, Ky. 
 
 Main walls 100 ft. 
 from street. 10 ft. 
 from side and rear 
 line 
 
 Diff. amts. for diff. 
 types of projections 
 
 
 
 Prohib- 
 ited 
 
 
 
 Brown Section 
 
 Minneapolis, Minn. 
 Thorpe Bros. 
 
 Main walls 40 ft. 
 from front lot line 
 and 5 ft. from side 
 line 
 
 Diff. for diff. types 
 of projections 
 
 
 60% to- 
 tal; 80% 
 width 
 
 
 Riparian 
 rights re- 
 served 
 
 
 Brookline Hills Sub'n 
 
 Brookline, Mass. 
 
 20, 10 ft. from 
 front St.; 5 ft. from 
 side and rear lines 
 
 Blanket permission 
 for projections 
 
 
 
 
 Reserva- 
 tion of 
 title by 
 seller 
 
 
 Cuyahoga View Heights 
 
 Hoiles & Hedden Co. 
 Cuyahoga Falls, Ohio 
 
 Specified in each 
 deed 
 
 Projectipns require 
 approval of builder 
 
 
 
 Prohib- 
 ited 
 
 
 5 ft. rear 
 
 Colony Hills 
 
 Special schedule. 
 10 ft. from rear 
 line 
 
 Diff. amts. for diff. 
 types of projections 
 
 30 ft. min- 
 imum free 
 space 
 
 
 
 Title re- 
 seved by 
 seller 
 
 
 Springfield, Mass. 
 
 
 
 Set-back 30 ft. 
 from street line 
 
 Projections may go 
 8 ft. beyond build- 
 ing line 
 
 40 ft. min- 
 imum 
 
 
 
 
 
 Baltimore, Md. 
 
 
 *An additional restriction specifying a minimum lot area is found in the deeds of two subdivisions: Sudbrook, 1 house per 
 acre; Sunrise Addition, 4,000 sq. ft. 
 
4 o DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Table II. Restrictions Pertaining to the Use of the Lot Area (Continued) 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 Building Lines 
 
 Projections 
 
 Lot 
 
 Frontage 
 
 Percent, of 
 Lot Area 
 Covered 
 
 Further 
 Subdi- 
 vision 
 
 Public 
 Areas 
 
 Ease- 
 ments 
 
 Cravath Sub'n 
 
 Locust Valley, L. I. 
 
 20 ft. from side 
 and front streets 
 
 
 
 
 Offer to 
 
 neighbor 
 
 before 
 
 selling 
 
 Seller re- 
 serves ti- 
 tle to 
 marsh 
 
 
 
 
 
 
 
 
 
 
 Casco Bay, Me. 
 
 
 
 
 
 
 
 Prohib- 
 ited for 
 25 yrs. 
 
 
 
 Hogle & Mawdsley 
 Carmel, Cal. 
 
 
 Devonshire Manor Annex. . . . 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 Set-back 15 ft. 
 from street 
 
 No projection 
 within 15 ft. of 
 street 
 
 
 
 
 
 Of record 
 
 
 Set-back 12 ft. 
 from street 
 
 No projection 
 within 12 ft. of 
 street 
 
 
 
 
 Seller will 
 improve 
 and main- 
 tain to 
 1930 
 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 
 
 
 
 
 
 
 
 S. S. Berry 
 Chicago, 111. 
 
 
 
 
 
 
 
 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 
 Set-back 27 ft. 
 from street 
 
 No projections 
 within 27 ft. of 
 
 street 
 
 
 
 
 
 
 Chas. P. Gray Co. 
 Chicago, III. 
 
 
 
 Main walls 35 ft. 
 from front line and 
 5 ft. from side line 
 
 Projections not 
 more than 12 ft. 
 beyond main wall 
 
 
 60% total 
 
 80% 
 
 width 
 
 
 
 
 Thorpe Bros. 
 Minneapolis, Minn. 
 
 
 Forest Hills Gardens 
 
 Sage Foundation Homes 
 Long Island 
 
 Main walls 25 ft. 
 from front street 
 and 12 J^ ft. from 
 side 
 
 Diff. amts. for diff. 
 types of projections 
 
 
 
 
 
 On map. 
 3 ft. rear 
 
 
 Private garage only 
 
 Diff. for diff. lots 
 
 40 ft. 
 minimum 
 
 
 
 
 On map 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 20-12 ft. for main 
 walls 
 
 
 
 
 
 
 
 Providence, R. I. 
 
 
 
 Main front walls 
 20 ft. from lot line 
 
 
 
 
 
 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 Great Neck Hills 
 
 20-25 ft. main 
 walls from street 
 
 12 ft. from side 
 
 street 
 
 
 
 
 Reserved 
 by seller 
 
 
 Great Neck, L. I. 
 
 
 Glen Oaks 
 
 Diff. for diff. lots 
 
 
 
 
 
 
 
 Guy M. Rush 
 Los Angeles, Cal. 
 
 3 ft. side 
 
 Guilford . . 
 
 Special schedule 
 
 Diff. for diff. types 
 of projections 
 
 
 
 
 Reserved 
 by seller 
 
 5 ft. rear 
 
 Baltimore County, Md. 
 
 
 
 
 
 
 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 Harroun Park Sub'n 
 
 Currier Inv. Co. 
 Detroit, Mich. 
 
 20-25 ft. set-back 
 from front lot line 
 
 Projections may go 
 beyond building 
 line 
 
 
 
 
 
 
 Highland Park Addition 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 
 
 
 
 
 Of record 
 
 Howard-Lincoln etc. Add'n . . 
 Krenn & Dato, Inc. 
 Chicago, III. 
 
 15 ft. set-back 
 from street 
 
 15 ft. set-back for 
 projections 
 
 
 
 
 
 Of record 
 
 Hunting Ridge 
 
 Geo. R. Morris Org'n 
 Baltimore, Md. 
 
 Bldg. 10 ft. and 
 garage 3 ft. from 
 party line 
 
 
 50 ft. 
 minimum 
 
 
 
 
 
 
 50 ft. set-back for 
 main walls 
 
 50 ft. set-back for 
 projections 
 
 
 
 
 
 
 Bills Realty Co. 
 Chicago, 111. 
 
 Of record 
 
RESTRICTIONS ON PHYSICAL DEVELOPMENT 
 
 4i 
 
 Table II. Restrictions Pertaining to the Use of the Lot Area (Continued) 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 Building Lines 
 
 Projections 
 
 Lot 
 Frontage 
 
 Percent, of 
 Lot Area 
 Covered 
 
 Further 
 Subdi- 
 vision 
 
 Public 
 Areas 
 
 Ease- 
 ments 
 
 Kenilworth Hghlds. Sub'n . . . 
 Wittbold Realty Co. 
 Chicago, 111. 
 
 
 
 
 
 
 
 
 A. H. Kraus Co 
 
 Of record; diff. for 
 diff. lots 
 
 Porches, etc. may 
 project beyond 
 bldg. line 
 
 
 
 
 
 
 Chicago, 111. 
 
 
 Lake Wauconda 
 
 Perry Park, Colo. 
 
 Main wall 30 ft. 
 from front street, 
 5 ft. from side st. 
 
 
 
 
 
 Title re- 
 served by 
 seller 
 
 
 Laudermilk Villa 
 
 B. H. Laudermilk Co. 
 Chicago, 111. 
 
 30 ft. on all lots 
 
 
 
 
 
 
 
 Oakland, Cal. 
 
 Special schedule 
 
 
 
 
 
 Title re- 
 served by 
 seller 
 
 5 ft. on 
 certain 
 lines 
 
 
 Set-back 18 ft. 
 from street 
 
 Porch may project 
 beyond 18 ft. 
 
 
 
 Prohib- 
 ited 
 
 
 On plat 
 
 Blair Home Co. 
 Altoona, Pa. 
 
 
 
 Main walls 40 ft. 
 from front and 
 side streets 
 
 Diff. amts. for diff. 
 types of projections 
 
 
 
 
 Title re- 
 served by 
 seller 
 
 
 Seattle, Wash. 
 
 
 Maple Hill 
 
 F. B. McKibben Co. 
 Lansing, Mich. 
 
 Set-back 25 ft. 
 from front and 6 
 ft. from side lot 
 line 
 
 
 
 
 Prohib- 
 ited 
 
 
 2 ft. rear 
 and side 
 lines 
 
 
 Main walls 35 ft. 
 from front and 5 
 ft. from side lines 
 
 
 
 
 
 
 
 Spokane, Wash. 
 
 
 
 
 
 
 
 
 
 
 Little Rock, Ark. 
 
 
 Milwaukee-Howard etc. Sub'n 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 20 ft. set-back 
 from street 
 
 No projections be- 
 yond 20 ft. 
 
 
 
 
 
 Of record 
 
 
 Main walls 10 ft. 
 from side and rear 
 lines 
 
 
 
 
 
 Title re- 
 served by 
 seller 
 
 5 ft. 
 
 Lake Wales, Fla. 
 
 north 
 and east 
 
 Morningside Heights 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 Front walls 25 ft. 
 from lot line 
 
 
 
 
 
 
 
 Newton Blvd. Sub'n 
 
 Newton, Mass. 
 
 Main walls 25 ft. 
 from front and 5 
 ft. from side line 
 
 Diff. amts. for diff. 
 types of projections 
 
 
 
 
 Title re- 
 served by 
 seller 
 
 
 Oak Hill Village . . 
 
 Main walls of 
 house 25 ft. from 
 street line 
 
 
 
 
 
 
 
 Arnold Hartman 
 Boston, Mass. 
 
 
 Oyster Harbor, Inc 
 
 F. W. Norris Co. 
 Boston, Mass. 
 
 Set-back 50 ft. 
 from street and 20 
 ft. from lot line 
 
 
 
 
 
 
 
 Pacific Southwest Bank 
 
 Los Angeles, Cal. 
 
 Set-back 15 ft. 
 from front lot line 
 
 Steps may en- 
 croach on 15 ft. 
 set-back 
 
 
 
 
 
 
 Palos Verdes Estates 
 
 Los Angeles, Cal. 
 
 Diff. for diff. lots 
 
 
 
 Diff. for 
 diff. uses 
 
 Prohib- 
 ited 
 
 
 
 
 Diff. for diff. lots 
 
 
 
 
 
 
 
 Jemison & Co. 
 Birmingham, Ala. 
 
 at rear 
 
 
 Special schedule 
 
 
 
 
 
 
 
 Baltimore County, Md. 
 
 
 
 Schedule by lots 
 
 
 
 
 
 
 On map 
 
 Mason-MeDuffie Co. 
 San Francisco, Cal. 
 
 
 
 
 
 
 Into no 
 more than 
 
 4 lots 
 
 
 
 Louisville, Ky. 
 
 
42 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Table II. Restrictions Pertaining to the Use of the Lot Area {Continued) 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 Building Lines 
 
 Projections 
 
 Lot 
 Frontage 
 
 Percent, of 
 Lot Area 
 Covered 
 
 Further 
 Subdi- 
 vision 
 
 Public 
 Areas 
 
 Ease- 
 ments 
 
 
 Din*, for diff . lots 
 
 
 
 
 
 
 
 New York City 
 
 
 Sudbrook 
 
 Baltimore County, Md. 
 
 Main walls 40 ft. 
 from front and 10 
 ft. from side st. 
 
 May project 5 ft. 
 into set-back area 
 
 
 
 Prohib- 
 ited 
 
 Title re- 
 served by 
 seller 
 
 Reserved 
 
 Shaker Heights 
 
 Schedule for indi- 
 vidual lots 
 
 
 
 
 Prohib- 
 ited with- 
 out seller 
 
 
 
 Van Sweringen Co. 
 Cleveland, Ohio 
 
 
 
 Main walls 20 or 
 30 ft. 
 
 
 
 
 
 
 
 Calgary, Alberta 
 
 
 S. Bloomfield Highlands 
 
 Michigan Inv. Co. 
 Detroit, Mich. 
 
 Set-back 50 ft. 
 from street line 
 
 Projections may go 
 12 ft. beyond 
 building line 
 
 
 
 
 
 6 ft. on 
 rear line 
 
 
 20-25 ft. set-back 
 from front lot line 
 
 
 
 35% in- 
 side and 
 45% cor- 
 ner lot 
 
 
 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 
 Recorded on plat 
 
 Diff. amts. for diff. 
 types of projections 
 
 
 
 Prohib- 
 ited with- 
 out sell- 
 er's con- 
 sent 
 
 
 
 Whitcomb & Keller 
 So. Bend, Ind. 
 
 
 
 
 
 
 
 
 
 
 City Housing Corp. 
 New York City 
 
 
 
 Main walls 25 ft. 
 from front and 10 
 ft. from side street 
 
 
 
 
 Not to 
 violate re- 
 strictions 
 
 
 
 N. Andover, Mass. 
 
 
 Tilden Realty Corp. . . 
 
 Main walls 50, 100 
 and 20 ft. from 
 front street 
 
 
 
 
 To speci- 
 fied mini- 
 mum 
 
 
 
 Utica, N. Y. 
 
 
 Sunset Hill 
 
 Building lines on 
 plat 
 
 Diff. amts. for diff. 
 types of projections 
 
 
 
 
 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 
 
 Main walls 60 ft. 
 from front and 
 side streets 
 
 Diff. amts. for diff. 
 types of projections 
 
 
 
 Prohib- 
 ited 
 
 Title re- 
 served by 
 seller 
 
 
 Victoria, B. C. 
 
 
 
 Main walls 50-25 
 ft. from front and 
 side streets 
 
 
 
 
 Prohib- 
 ited 
 
 
 
 Wellesley, Mass. 
 
 
 
 On recorded plat 
 
 
 
 
 
 
 
 Bowie & Trent 
 San Benito, Tex. 
 
 
 
 Main walls 40 or 60 
 ft. from front and 
 side streets 
 
 
 
 
 Prohib- 
 ited with- 
 out sell- 
 er's con- 
 sent 
 
 Title re- 
 served by 
 seller 
 
 
 Scarborough, N. Y. 
 
 
 Vinsetta Park Sub'n 
 
 Vinsetta Land Co. 
 Detroit, Mich. 
 
 Set-back 50 ft. 
 from front lot line; 
 40 ft. also 
 
 Projections may 
 violate set-back 
 
 
 
 Prohib- 
 ited 
 
 
 4 ft. in 
 rear 
 
 Wagner-Thoreson Co 
 
 Los Angeles, Cal. 
 
 
 
 
 
 
 
 
 
 Set-back 50 ft. 
 from front line 
 
 Projections may 
 enter 50 ft. set- 
 back 
 
 60 ft. min- 
 imum 
 
 
 
 
 
 Woodmar Realty Co. 
 Hammond, Ind. 
 
 
 
 Set-back 15 ft. 
 from front line 
 
 Projections may 
 not violate set- 
 back 
 
 
 
 
 
 
 William Zelosky 
 Chicago, 111. 
 
 
 
 Set-back 25 ft. 
 from front and 5 ft. 
 from side lot line 
 
 Projections may 
 encroach on set- 
 back 
 
 
 
 
 
 Reserved 
 
 Van Alstine Land Co. 
 Detroit, Mich. 
 
 by seller 
 
RESTRICTIONS ON PHYSICAL DEVELOPMENT 
 
 43 
 
 on the building line or may the steps 
 encroach on the setback area; if a 
 covered porch must be entirely behind 
 the building line, must an open porch 
 observe the same rule? In other words, 
 a building line must be defined not only 
 in terms of distance from the lot line 
 but also in terms of the portion of the 
 building affected by this line. Still an- 
 other objection to this type of restrictive 
 clause is that it makes no mention of 
 side lines. No requirements are set with 
 respect to location of the residence in 
 relation to the houses on either side. 
 In short, a building line restriction such 
 as the one cited here is of but little value 
 from the point of view of securing a 
 balanced plan for the development. It 
 marks one extreme in the variety of 
 clauses drawn to establish building lines. 
 Restrictions in the second classifica- 
 tion are much more adequate for the 
 purposes for which they are designed. 
 Two examples in this class may be cited: 
 
 "All lots (excepting those fronting on Van 
 Alstine and J. W. Daly Avenues and Maple 
 Avenue west of J. W. Daly Avenue) shall 
 be used for residence purposes only and no 
 building shall be erected or placed within 25 
 feet from the front lot line, and at least 5 
 feet from the side lot lines. (Porches, steps 
 and windows, however, shall not be con- 
 strued as a part of the building)." 17 
 
 "No building shall be erected, placed or 
 suffered to remain on any lot, the front of 
 said building being less than thirty (30) feet 
 from the inside sidewalk line of the street 
 upon which said lot faces, nor shall any 
 building or porch be nearer to the drive side 
 of any lot than eight (8) feet and nearer to 
 the other side than three (3) feet. On lots 
 facing on Avon Center or Armour Roads, 
 however, no building shall be erected, placed 
 or suffered to remain thereon, the front 
 thereof being nearer than forty (40) feet to 
 the inside line of the sidewalk of the street 
 upon which said lot faces, but in all other 
 respects said lots facing on said Roads shall 
 be governed by the same terms and condi- 
 
 17 Westwood Subdivision, Van Alstine Land Com- 
 pany, Detroit, Michigan. 
 
 tions as any and all other Sub Lots in said 
 Subdivision. No open porch shall extend 
 further than ten (10) feet from the building 
 upon any lot." 18 
 
 Other restrictions in this group define 
 somewhat further the building lines for 
 projections. Some clauses stipulate the 
 number of feet which oriels, bays, 
 porches (open or closed), steps, ter- 
 races, chimneys, etc., may encroach upon 
 the setback area. In such cases the 
 clause usually reads to the effect that 
 the main walls of the building shall be 
 set back a definite number of feet from 
 the lot line and that projections may 
 protrude a specified number of feet 
 beyond these walls. 
 
 The third group of building line re- 
 strictions is doubtless possible only on 
 the high-grade subdivisions, for their 
 planning involves considerable expense. 
 To determine them accurately requires 
 a careful survey and a study of the 
 peculiarities of each lot. It is not feasible 
 to reproduce here a restrictive clause 
 of this kind on account of its length and 
 the fact that the data are not readily 
 understandable without reference to a 
 plat of subdivision. Suffice to say, this 
 type of building restriction represents 
 the acme of caution in safeguarding the 
 developer's plan. 
 
 Building line regulations also fre- 
 quently contain requirements as to the 
 location of garages and other outbuild- 
 ings. Distance from the residence, from 
 the rear line, from the side street are 
 the most common forms of regulation 
 used in these cases. 
 
 Closely related to this matter of build- 
 ing lines is regulation of the frontage of 
 residences on particular streets. Such 
 regulation is especially important with 
 reference to corner lots. Carefully 
 drawn instruments, such as those of the 
 
 18 Avon Center Estates, H. F. Bowse, Cleveland, 
 Ohio. 
 
44 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 J. C. Nichols Investment Company of 
 Kansas City, state which way the resi- 
 dences on separate lots or blocks of lots 
 shall face. 
 
 Finally, the easements and rights of 
 way that are reserved are an important 
 restriction on the use of the lot area. A 
 rather common practice with reference 
 to these is merely to refer in the deed to 
 the recorded map on which easements 
 and rights of way are platted, as for 
 instance 
 
 "Such easements and rights of way are 
 located on said Map entitled "Fernside" and 
 except where otherwise indicated thereon or 
 specified in conveyances, shall be confined to 
 the rear five feet of all lots shown thereon." 19 
 
 These reservations are usually made 
 only on the rear of the lot, although in 
 some subdivisions both side and rear 
 areas are reserved. 
 
 "Rear and side lot lines to the distance of 
 i feet, together with overhang for pole arms, 
 are subject to an easement for necessary 
 electric wire or telephone poles or for any 
 utility, and ingress and egress is expressly 
 reserved to workmen employed thereon." 20 
 
 A good deal may be said in favor of 
 considerable elasticity in the administra- 
 tion of building line restrictions. If 
 discretionary powers are vested in the 
 subdivider or his agent, he may make an 
 exception here and there where it seems 
 necessary, securing compensation by a 
 more stringent restriction applied else- 
 where on the same lot. Elasticity in 
 administering this restriction should not 
 be exercised to favor a certain lot holder. 
 It is merely a matter of weighing leni- 
 ency on one point against more strict 
 construction on another in the interest 
 of a better balanced development. When 
 this power is coupled with power to 
 
 approve building plans, it may result 
 in a more attractive layout than could 
 have been secured by a uniform or 
 definite prescription applied to a larger 
 area. 
 
 The only other restriction which has 
 to do with the actual use of the lot area 
 is the one which stipulates the percent- 
 age of the lot area that may be covered 
 by the improvement. Certain restric- 
 tions state flatly that "no dwelling shall 
 occupy more than 2S% of an inside lot or 
 45% of a corner lot" 21 but a more com- 
 mon form couples percentage of lot area 
 with percentage of lot width to be 
 covered. 22 One of the main benefits of 
 such a restriction is to prevent the erec- 
 tion of various outbuildings on the rear 
 of the lot. It is therefore especially use- 
 ful when applied to deep lots. The few 
 instances (six) of this type of regulation 
 would seem to indicate that its im- 
 portance is declining, probably as a 
 result of the growing importance of the 
 restriction requiring approval of build- 
 ing plans and definite stipulations as to 
 the number and kind of outbuildings. 
 The submission of building plans to the 
 subdivider or other agency in charge of 
 administering that restriction affords 
 opportunity for insuring ample free 
 spaces. 
 
 Restrictions with respect to the size of 
 the lot in terms of minimum lot frontage 
 or minimum lot area were found in but 
 very few of the deeds examined. The 
 reason is probably that such items are 
 taken care of on the recorded plat of 
 the subdivision. However, a statement 
 as to the minimum lot frontage allowed 
 was found in seven instances in the deeds 
 
 19 Fernside, Fred T. Wood Company, Oakland, 
 California. 
 
 20 Maple Hill, Frank B. McKibbin Company, Lan- 
 sing, Michigan. 
 
 21 Sunrise Addition, R. C. Erskine & Co., Seattle, 
 Wash. 
 
 22 "No residence, with attached garages, attached 
 greenhouses and porches shall occupy to exceed 6o% 
 of the area of this lot, nor shall have a width greater 
 than 8o% of the width of the lot . . ." (Brown 
 Section, Thorpe Bros., Minneapolis, Minn.). 
 

 RESTRICTIONS ON PHYSICAL DEVELOPMENT 45 
 
 examined in this study. Its main useful- pertaining to the physical development 
 ness would seem to be in preventing the of the area has to do with regulations 
 subdivision of original lots into smaller regarding the public areas. In general, 
 parcels. Whether or not this is the pur- these restrictions are not very specific, 
 pose of such clauses is not revealed by In a large number of the Olmsted deeds 
 the deeds, which contain for the most a restriction is found which states that 
 part flat statements to the effect that the seller reserves title to the public 
 "no lot shall have a frontage of less than areas but no indication is given as to 
 fifty feet." 23 If the prevention of sub- what these public areas include. Like- 
 division is its purpose, this restriction wise, in the other group of deeds no 
 seems rather a left-handed measure of specific mention is made with reference 
 control. to public areas, although their existence 
 
 The requirement of a minimum lot is evidenced by the presence of mainte- 
 area is even more infrequently found, nance charges which cover the expenses 
 only one subdivision 24 having a stipula- involved in the upkeep of these areas as 
 tion to this effect. The value of this re- well as other items which are best 
 striction may be impaired unless it is handled as community rather than as 
 coupled with a requirement for minimum individual services. One developer 
 lot frontage. In order to secure the neces- specifically reserves riparian rights and 
 sary square footage the depth may be another retains title to a piece of marsh 
 extended at the expense of the width, land. Whether or not the shores of the 
 The presence of such a regulation may lake or the marsh are to be developed 
 be explained in some instances by the for public use is not stated. An oc- 
 existence of a state law or a municipal casional developer reserves title to the 
 zoning ordinance, which specifies such a streets, granting the lot owners ease- 
 minimum, ments of ingress and egress over those 
 
 Much more important are the restric- streets. Such instances are the exception 
 
 tions aimed directly at further sub- rather than the rule. By far the most 
 
 division of the lots. These are more common practice is the dedication of the 
 
 numerous among the examples studied, streets to the public. The process is 
 
 Many of these clauses merely make a very simple, for if a developer paves 
 
 flat statement to the effect that further his streets, lays sidewalks and sells the 
 
 subdivision of the original lots is pro- adjoining lots without reserving title to 
 
 hibited but others include permission the streets, the city regards this as an 
 
 to divide the lot and to merge the sec- offer of dedication which it may accept 
 
 tions thus created with the adjoining merely by performing such functions as 
 
 lots, thus laying sewers or erecting street lights. 
 
 ". . . no lot shall be subdivided for the The whole procedure is frequently reg- 
 
 purpose of erecting a complete residence on ulated by a statute which "usually 
 
 either portion; provided, however, that a lot provides that the recording and ac- 
 
 may be subdivided when the portions so know l edgment G f the Subdivision Plat 
 
 created are added to the adioinine lots on , „ r 
 
 either side." 25 shall operate as a conveyance in fee 
 
 simple and with warranty of all streets 
 
 _TheJmal division under restrictions an j a // eys an d other portions laid out for 
 
 23 Ashburton Homes, Geo. R. Morris Organization, public USeS." 26 (Italics Ours.) 
 
 Baltimore, Md. 
 
 24 Sunrise Addition, R. C. Erskine & Co., Seattle, M Locust Hills, Blair Homes Co., Altoona, Pa. 
 
 Wash. 26 MacChesney, op. cit., p. 601-2. 
 
CHAPTER V 
 
 Other Clauses Dealing With Duration, Administration, and Racial 
 
 Restrictions 
 
 Restrictions on Alienation and Occupancy 
 
 Restrictions regulating ownership and 
 occupancy of subdivision property are 
 usually directed against persons not of 
 the Caucasian race. Thus, when a sub- 
 divider inserts a clause in the convey- 
 ance to the effect that the lot owner 
 must have the approval of the seller 
 before alienating or renting his prop- 
 erty, he is usually seeking to prevent 
 ownership or use of that property by 
 other than white persons. So before 
 discussing in detail what are commonly 
 called "racial restrictions," it may be 
 well to consider briefly the legality of 
 restraints on alienation 1 in general. 
 
 The statement has been made that 
 restrictions of a general character against 
 alienation are invalid, whereas a restric- 
 tion directed against a limited group 
 will generally be sustained. 2 The follow- 
 ing quotation expresses a similar idea: 
 
 "A condition may be imposed in a deed on 
 the power of alienation in certain cases, as 
 that the land shall not be conveyed before a 
 certain date or to a certain person . . . 
 But an absolute restriction on the power of 
 alienation ... is void." 3 
 
 This is not a hard and fast rule, how- 
 ever, for state laws differ and state courts 
 differ in their interpretation of these laws. 
 An Illinois court held that a restriction 
 in a will even for a limited period is 
 invalid, 4 while the United States Su- 
 
 1 Alienation is "the transfer of the property and 
 possession of lands, tenements, or other things, from one 
 person to another." (Bouvier's Law Dictionary, 
 Rawle's Revision, 1914, article on "Alienation".) 
 
 2 See MacChesney, op. cit., p. 586. 
 
 3 Devlin, op. cit., Vol. 2, sec. 965, p. 1791. 
 
 4 "In a devise of land in fee simple a condition against 
 all alienation is void, because tepugnant to the estate 
 
 preme Court in the much quoted case of 
 Cowell v. Colorado Springs Co. upheld 
 the right of an individual to impose 
 such restriction for a limited time. The 
 opinion reads as follows: 
 
 ". . . the owner of property has a 
 right to dispose of it with a limited restriction 
 on its use, however much the restriction may 
 affect the value or the nature of the estate. 
 Repugnant conditions are those which tend 
 to the utter subversion of the estate, such as 
 prohibit entirely the alienation or use of the 
 property. Conditions which prohibit its 
 alienation to particular persons for a limited 
 period, or its subjection to particular uses, 
 are not subversive of the estate: they do 
 not destroy or limit its alienable or inherit- 
 able character." 5 
 
 The divergence of opinion which is re- 
 vealed by these examples is further 
 borne out in the interpretation of restric- 
 tions applied to specific racial groups. 
 In deed restrictions a general restraint 
 upon alienation usually takes the form 
 of a reservation on the part of the seller 
 requiring his approval before the prop- 
 erty may be transferred. In the instru- 
 ments examined only very few instances 
 of this type of restriction were found. 
 Of the 84 deeds but seven contained a 
 clause to this effect and two of these 
 were instruments drawn by the same 
 subdivider. The Shaker Heights develop- 
 ment in Cleveland, Ohio, uses this de- 
 vice, although provision is made for 
 overruling the decision of the seller by 
 
 conveyed ... A restriction, whether by way of 
 condition or of devise over or against alienation, al- 
 though for a limited time, of an estate in fee is likewise 
 void, as repugnant to the estate devised to the first 
 taker, by depriving him, during that time, ot the in- 
 herent power of alienation." Jones v. Port Huron 
 Engine Co., 171 111. 502 at 507 (1898). 
 6 100 U.S. 55 at $7 (1879). 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 47 
 
 the lot owners affected. The warranty 
 deed contains this paragraph: 
 
 "The premises hereby conveyed shall not 
 be occupied, leased, rented, conveyed or 
 otherwise alienated, nor shall the title or 
 possession thereof pass to another without the 
 written consent of the Grantor except that the 
 Grantor shall not withhold such consent if 
 and after a written request has been made to 
 the Grantor to permit such occupation, 
 leasing, renting, conveyance or alienation by 
 a majority of the owners of the sublots which 
 adjoin or face said premises upon both sides 
 of the highway or highways, upon which said 
 premises front or abut, and within a distance 
 of five (5) sublots from the respective bound- 
 ary lines of the said premises, except transfer 
 of title by way of devise or inheritance, in 
 which case the devisee or heir shall take such 
 property subject to the restrictions herein 
 imposed and except that said property may 
 be mortgaged or subjected to judicial sale, 
 provided, in any such case that no purchaser 
 of said premises at judicial sale shall have the 
 right to occupy, lease, rent, convey, or other- 
 wise alienate said premises without the writ- 
 ten consent of the Grantor first had and ob- 
 tained in the manner above stated." 
 
 Coming now to racial restrictions, 
 the first question usually asked is: 
 Are they constitutional? The general 
 impression seems to be that an attempt 
 to exclude members of a certain race 
 from a given area is contrary to the law 
 of the land or constitutes racial dis- 
 crimination. The thirteenth and four- 
 teenth amendments to the Federal 
 Constitution are usually cited in this 
 connection. But these amendments 
 refer to state action or legislative 
 measures and not to individual action 
 based on the right of contract. The 
 principle has therefore been established 
 that legislation cannot segregate racial 
 groups in a community. An outstanding 
 case is that of Buchanan v. Warleyf 
 
 Table III. Restrictions on Alienation 
 and Occupancy 
 
 6 "We think this attempt to prevent alienation of the 
 
 property in question to a person of color was not a 
 
 legitimate exercise of the police power of the state 
 
 and is in direct violation of the fundamental law en- 
 
 (Continued on page i8) 
 
 
 Restr 
 
 ctions 
 
 and Subdivider 
 and Location 
 
 On 
 
 Alienation 
 
 On 
 Occupancy 
 
 
 Africans, 
 
 Mongolians 
 
 prohibited 
 
 
 Baker Estates 
 Altoona, Pa. 
 
 Mongolians 
 prohibited 
 
 
 Caucasians 
 only 
 
 
 J. R. Robertson & Co. 
 Chicago, 111. 
 
 
 
 
 
 Laudermilk Realty Co. 
 Chicago, 111. 
 
 
 
 Negroes 
 barred 
 
 Negroes 
 barred 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 
 
 
 Anchorage, Ky. 
 
 
 
 Seller must 
 approve 
 
 Seller must 
 approve 
 
 
 Baltimore, Md. 
 
 
 
 
 New Britain, Conn. 
 
 
 
 
 
 H. F. Bowse 
 Cleveland, Ohio 
 
 
 
 
 
 Brookline, Mass. 
 
 
 
 Caucasian 
 only — Con- 
 dition 
 
 
 A. T. Mc Intosh Co. 
 Chicago, 111. 
 
 only — Con- 
 dition 
 
 
 
 
 Ann Arbor, Mich. 
 
 
 
 Caucasians 
 only 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 only 
 
 
 
 
 Beacon Falls, Conn. 
 
 
 
 
 
 Boston, Mass. 
 
 
 
 
 
 Louisville, Ky. 
 
 
 Brown Section 
 
 Thorpe Bros. 
 Minneapolis, Minn. 
 
 Caucasians 
 only 
 
 Caucasians 
 only 
 
 Brookline Hills Sub'n 
 
 Brookline, Mass. 
 
 
 
 
 White race 
 only 
 
 
 Hoiles & Hedden Co. 
 Cuyahoga Falls, Ohio 
 
 only 
 
 Colony Hills 
 
 Springfield, Mass. 
 
 
 
 
 Negroes 
 barred 
 
 
 Baltimore, Md. 
 
 barred 
 
 Cravath Sub'n 
 
 Locust Valley, L. I. 
 
 
 
 Cushing's Island 
 
 Casco Bay, Me. 
 
 
 
 Deven Heights 
 
 Hogle & Mawdsley 
 
 Carmel, Cal. 
 
 Asiatics and 
 
 Negroes 
 
 barred 
 
 Asiatics and 
 
 Negroes 
 
 barred 
 
 Devonshire Manor Annex 
 
 Krenn & Dato 
 Chicago, 111. 
 
 Caucasians 
 only — Con- 
 dition 
 
 Caucasians 
 only — Con- 
 dition 
 
4 8 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Table III. Restrictions on Alienation 
 and Occupancy {Continued) 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 Restr 
 
 ictions 
 
 On 
 Alienation 
 
 On 
 
 Occupancy 
 
 
 Caucasians 
 only — Con- 
 dition 
 
 
 Krenn & Dato 
 Chicago, 111. 
 
 only — Con- 
 dition 
 
 
 
 
 S. S. Berry 
 Chicago, 111. 
 
 
 Estudillo Estates 
 
 Caucasians 
 only 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 only 
 
 Fairview Addition 
 
 Chas. P. Gray Co. 
 Chicago, 111. 
 
 
 
 
 Caucasians 
 only 
 
 
 Thorpe Bros. 
 Minneapolis, Minn. 
 
 only 
 
 
 
 
 Sage Foundation Homes 
 Long Island 
 
 
 
 Africans, 
 
 Mongolians 
 
 barred 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 only 
 
 
 
 
 Providence, R. I. 
 
 
 
 Caucasians 
 only 
 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 only 
 
 Great Neck Hills 
 
 
 
 Great Neck, L. I. 
 
 
 Glen Oaks 
 
 Caucasians 
 only 
 
 
 Guy M. Rush 
 Los Angeles, Cal. 
 
 only 
 
 Guilford 
 
 
 
 Baltimore County, Md. 
 
 barred 
 
 
 Caucasians 
 only 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 only 
 
 
 Caucasians 
 only 
 
 
 Currier Inv. Co. 
 Detroit, Mich. 
 
 only 
 
 Highland Park Addition 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 Caucasians 
 only — Con- 
 dition 
 
 Caucasians 
 only — Con- 
 dition 
 
 Howard-Lincoln etc. Add'n 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 Caucasians 
 only — Con- 
 dition 
 
 Caucasians 
 only — Con- 
 dition 
 
 
 Seller shall 
 
 approve 
 
 assignee 
 
 Seller shall 
 
 Geo. R. Morris Org'n 
 Baltimore, Md. 
 
 approve 
 renter 
 
 
 Caucasians 
 only 
 
 
 Bills Realty Co. 
 Chicago, III. 
 
 only 
 
 Kenilworth Hghlds. Sub'n 
 
 Wittbold Realty Co. 
 Chicago, III. 
 
 Caucasians 
 only — Con- 
 dition 
 
 
 A. H. Kraus Co 
 
 Caucasians 
 only — Con- 
 dition 
 
 
 Chicago, 111. 
 
 only — Con- 
 dition 
 
 
 
 
 Perry Park, Colo. 
 
 
 Laudermilk Villa 
 
 B. H. Laudermilk Co. 
 Chicago, III. 
 
 
 
 in which the Supreme Court of the 
 United States declared invalid an ordin- 
 ance of Louisville, Kentucky, designed 
 to prohibit occupancy by a colored per- 
 son of a house in a block where eight out 
 of ten residences were occupied by white 
 persons. 
 
 The right to discriminate through 
 private contract, however, is not so 
 clearly defined, as already indicated. 
 It was hoped that a decisive opinion 
 would be handed down when the Su- 
 preme Court considered the case of 
 Corrigan v. Buckley, which involved the 
 transfer of a piece of property in Wash- 
 ington, D. C, upon which there was a 
 restriction placed by mutual agreement 
 of owners in the block that the several 
 parcels should not be sold to negroes. 
 The court did not give a conclusive 
 decision on this point asserting want of 
 jurisdiction. The opinion in the case, 
 however, may be considered to indicate 
 what the position of the Supreme Court 
 might be when it is called upon to decide 
 such an issue. It suggests an attitude 
 favorable to the free use of the right of 
 contract to control the disposition of 
 property. In fact, so strong is the indi- 
 cation that some proponents of this 
 position are inclined to regard it as 
 authoritative on this point. At any rate 
 the opinion is most interesting and well 
 worth examining. The following ex- 
 cerpts give the gist of the opinion. 
 
 "This contention (that the covenant is 
 void in that it is contrary to and forbidden 
 by the 5th, 13th and 14th Amendments) is 
 entirely lacking in substance or colorof merit. 
 The fifth Amendment is a limitation only 
 upon the powers of the general government 
 and is not directed against the action of 
 individuals. The thirteenth Amendment in- 
 volving slavery and involuntary servitude, 
 that is, a condition of enforced compulsory 
 
 [Footnote 6 continued from page 1,7) 
 acted in the 14th amendment of the Constitution pre- 
 venting state interference with property rights except 
 by due process of law." (245 U. S. 60 (1917) .) 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 49 
 
 service of one to another, does not in other 
 matters protect the individual rights of 
 persons of the negro race. And the prohibi- 
 tions of the fourteenth Amendment have 
 reference to state action exclusively and not 
 to any action of private individuals. It is 
 state action of a particular character that is 
 prohibited. Individual invasion of individual 
 rights is not the subject matter of the 
 amendment. It is obvious that none of these 
 Amendments prohibited private individuals 
 from entering into contracts respecting the 
 control and disposition of their own property; 
 and there is no color whatever for the con- 
 tention that they rendered the indenture 
 void." 
 
 "Assuming that this contention (that the 
 indenture is void in that it is forbidden by 
 the laws enacted in aid and under the sanc- 
 tion of the thirteenth and fourteenth amend- 
 ments) drew in question the 'construction' of 
 these statutes, as distinguished from their 
 'application,' it is obvious upon their face that 
 while they provide inter alia, that all persons 
 and citizens shall have equal right with white 
 citizens to make contracts and acquire pro- 
 perty, they, like the constitutional amend- 
 ments under whose sanction they are enacted, 
 do not in any manner prohibit or invalidate 
 contracts entered into by private individuals 
 in respect to the control and disposition of 
 their own property." 7 
 
 A long line of cases might be cited to 
 show the attitudes of the different state 
 courts. Some of them uphold restraints 
 upon both occupancy and alienation and 
 some uphold them only upon occupancy. 
 An example of the former position is 
 that taken by a Missouri court with 
 reference to a condition in a deed pro- 
 hibiting for 25 years the sale, lease or 
 rental of the property to a negro. 
 
 "It is the rule that an absolute restriction 
 in the power of alienation in the conveyance 
 of a fee simple title is void, but it is entirely 
 within the right and power of the grantor to 
 impose a condition or restraint upon the 
 power of alienation in certain cases to certain 
 persons, or for a certain time, or for certain 
 purposes. The condition in the deed under 
 
 Table III. Restrictions on Alienation 
 and Occupancy {Continued) 
 
 7 271 U. S. 323; 70 L. ed. 969 at 972 and 973 (1925). 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 Restr 
 
 ctions 
 
 On 
 Alienation 
 
 On 
 
 Occupancy 
 
 
 
 
 Oakland, Cal. 
 
 
 
 Mongolians 
 and Africans 
 barred 
 
 
 Blair Home Co. 
 Altoona, Pa. 
 
 and Africans 
 barred 
 
 
 
 
 Seattle, Wash. 
 
 
 Maple Hill 
 
 Caucasians 
 only 
 
 
 F. B. McKibbin Co. 
 Lansing, Mich. 
 
 
 
 
 
 Spokane, Wash. 
 
 
 
 
 
 Little Rock, Ark. 
 
 
 Milwaukee-Howard etc. Sub'n. . . 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 Caucasians 
 only — Con- 
 dition 
 
 Caucasians 
 only — Con- 
 dition 
 
 
 
 
 Lake Wales, Fla. 
 
 
 
 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 
 
 
 Newton, Mass. 
 
 
 Oak Hill Village 
 
 
 
 Arnold Hartman 
 Boston, Mass. 
 
 
 Oyster Harbor, Inc 
 
 F. W. Norris Co. 
 Boston, Mass. 
 
 
 
 
 Caucasians 
 only 
 
 
 Los Angeles, Cal. 
 
 only 
 
 
 Caucasians 
 only 
 
 
 Los Angeles, Cal. 
 
 only 
 
 
 
 
 
 
 Birmingham, Ala. 
 
 
 Roland Park 
 
 
 
 Baltimore County, Md. 
 
 
 
 Caucasians 
 only 
 
 Caucasians 
 
 Mason-McDuffie Co. 
 San Francisco, Cal. 
 
 only 
 
 
 
 
 Louisville, Ky. 
 
 
 
 
 
 New York City 
 
 
 
 
 
 Baltimore County, Md. 
 
 
 
 
 
 Van Sweringen Co. 
 Cleveland, Ohio 
 
 
 
 
 
 Calgary, Alberta 
 
 
 
 Caucasians 
 only 
 
 Caucasians 
 
 Michigan Inv. Co. 
 Detroit, Mich. 
 
 only 
 
 Sunrise Addition 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 Caucasians 
 only 
 
 Caucasians 
 only 
 
5° 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 consideration does not come within the rule 
 prohibiting restraints upon alienation." 8 
 
 The California and Michigan courts, 
 however, consider private restrictions 
 on alienation invalid but uphold them 
 when applied to occupancy. An im- 
 portant California case 9 to this effect 
 has already been cited in another con- 
 nection (Ch. Ill, p. 16). Two Michigan 
 cases, Porter v. Barrett and Parmalee v. 
 Morris, 10 uphold restraints upon oc- 
 cupancy and the former case includes a 
 ruling to the effect that restraints upon 
 alienation are invalid. The problem in- 
 volved in these cases is not new but the 
 recency of the dates shows that it has 
 been occupying the attention of the 
 courts to a greater extent in the last few 
 years which have witnessed the modern 
 subdivision developments. 
 
 This fact is further emphasized by an 
 examination of the deeds included in 
 this study. Forty of the total 84 deeds 
 contain racial restrictions. Of these 33 
 are restraints both upon alienation and 
 occupancy; four are upon alienation 
 alone; and three upon occupancy only. 
 But more interesting than the numbers 
 in these classes are the sources of the 
 restrictions. Only two of the Olmsted or 
 older group of deeds contain any racial 
 restrictions v/hatsoever and these are 
 upon occupancy. In other words, 38 of 
 the 40 racial restrictions are found in 
 the more recent instruments. 
 
 Any discussion of the geographical 
 distribution of racial restrictions is 
 hampered by the smallness of the sam- 
 ple. Certain tendencies may be noted, 
 however. The device seems to be in 
 rather general use in the vicinity of the 
 larger eastern and northern cities which 
 
 Table III. Restrictions on Alienation 
 and Occupancy (Continued) 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 Restrictions 
 
 On 
 
 Alienation 
 
 On 
 
 Occupancy 
 
 Sunnymede 
 
 Whitcomb & Keller 
 S. Bend, Ind. 
 
 Caucasians 
 only, except 
 business 
 
 Caucasians 
 only, except 
 business 
 
 
 
 
 City Housing Corp. 
 New York City 
 
 
 Tavern Acres 
 
 N. Andover, Mass. 
 
 
 
 Tilden Realty Corp 
 
 
 
 Utica, N. Y. 
 
 
 Sunset Hill 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 Negroes 
 barred 
 
 Negroes 
 barred 
 
 Uplands 
 
 Victoria, B. C 
 
 
 
 
 
 
 Wellesley, Mass. 
 
 
 
 Caucasians 
 only 
 
 
 Bowie & Trent 
 San Benito, Tex. 
 
 only 
 
 
 
 
 Scarborough, N. Y. 
 
 
 
 
 
 Vinsetta Land Co. 
 Detroit, Mich. 
 
 
 
 Caucasians 
 only 
 
 Caucasians 
 
 Los Angeles, Cal. 
 
 only 
 
 
 Caucasians 
 only 
 
 Caucasians 
 
 Woodmar Realty Co. 
 Hammond, Ind. 
 
 only 
 
 
 
 
 William Zelosky 
 Chicago, III. 
 
 
 
 Negroes 
 barred 
 
 
 Van Alstine Land Co. 
 Detroit, Mich. 
 
 
 8 Koehler v. Rowland, 275 Mo. 573, at 584 (igi 8). 
 
 9 Los Angeles Investment Co. v. Gary, 181 Cal. 68o, 
 186 Pac. 596 (19 19); see also Janss Investment Co. v. 
 fValden, 196 Cal. 753, 239 Pac. 34 (1925). 
 
 10 233 Mich. 373 (1925); 218 Mich. 624 (1922). 
 
 have experienced a large influx of col- 
 ored people in recent years. But the 
 most pronounced tendency is found on 
 the Pacific Coast where the restriction is 
 directed primarily against the Orientals. 
 In this connection it is interesting to 
 note that several of the racial restric- 
 tions included in the sample cover both 
 alienation and occupancy, in spite of 
 the decision cited previously which 
 shows that restrictions against aliena- 
 tion are not valid under the California 
 Code. The presence of such restrictions 
 merely emphasizes the fact that prohibi- 
 tions which are technically illegal may 
 continue to exist because thev have the 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 5i 
 
 sanction of the parties to the agreement. 
 As control devices, however, they are 
 precarious because they may be attacked 
 at any time by someone out of sympathy 
 with their purpose and thus easily over- 
 thrown. 
 
 Of the two forms in which this restric- 
 tion may be couched, the restrictive 
 covenant is more common than the con- 
 dition. A typical covenant reads as 
 follows: 
 
 "No lot shall be sold, conveyed, leased or 
 rented to any person other than of the white 
 or Caucasian race, nor shall any lot ever 
 be used or occupied by any person other than 
 one of the white or Caucasian race, except 
 such as may be serving as domestics for the 
 owner or tenant of said lot, while said owner 
 or tenant is residing thereon." 11 
 
 An example of a racial restriction in 
 the form of a condition is the one used 
 by Krenn and Dato, of Chicago: 
 
 "It shall be an express condition in said 
 Deed that the premises herein described shall 
 not be conveyed or leased by the grantee or 
 any of the successors in title of the grantee to 
 any person who is not a Caucasian; that 
 neither the premises herein described nor 
 any of the improvements thereon shall be 
 occupied by anyone who is not a Caucasian; 
 and that in the event that the premises 
 herein described shall be conveyed or leased 
 by the grantee or any of the successors in 
 title of the grantee to any person who is not a 
 Caucasian, or in the event that said premises 
 or any improvements erected thereon shall at 
 any time be occupied by a person who is not 
 a Caucasian, the property herein described 
 shall revert to the grantor in said deed free 
 and clear from any claim of the grantee or 
 the successor in title of the grantee, such re- 
 version, however, to be subject to any then 
 existing encumbrances." 12 
 
 This discussion serves merely to empha- 
 size the lack of uniformity both in the 
 form of racial restrictions and in the 
 attitude of the courts with respect to 
 them. It therefore behooves each in- 
 
 Table IV. Restrictions Pertaining to 
 
 the Rights, Powers and Duties of 
 
 the subdivider 
 
 11 Fairway Section, Thorpe Bros., Minneapolis, Minn. 
 
 12 Highland Park Addition. 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 Utility 
 Installation 
 
 Reservations 
 
 and 
 Modifications 
 
 Alleghany Furnace 
 
 Baker Estates 
 Altoona, Pa. 
 
 Easements re- 
 served by 
 seller 
 
 Seller may 
 modify R's on 
 lot ust- with 
 consent 
 
 Ardmore 
 
 J. R. Robertson & Co. 
 Chicago, 111. 
 
 
 
 Arlington Park 
 
 Laudermilk Realty Co. 
 Chicago, 111. 
 
 
 
 
 
 Seller may 
 change bldg. 
 lines, frontage, 
 etc.; may as- 
 sign powers 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 
 
 
 Anchorage, Ky. 
 
 
 
 
 
 G. R. Morris Org'n 
 Baltimore, Md. 
 
 bldg. line, 
 grade, etc., in 
 approving 
 plans 
 
 
 
 
 New Britain, Conn. 
 
 
 Avon Center Estates 
 
 H. F. Bowse 
 Cleveland, Ohio 
 
 Seller reserves 
 right to grant 
 consent for 
 utilities 
 
 
 Aspinwall Hill Sub'n 
 
 Brookline, Mass. 
 
 
 
 Belmont Country Club 
 
 A. T. Mcintosh Co. 
 Chicago, 111. 
 
 
 
 Barton Hills 
 
 Easements re- 
 served by seller 
 
 
 Ann Arbor, Mich. 
 
 right to mod- 
 
 ify 
 
 Best Manor 
 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 
 
 
 Beacon Falls, Conn. 
 
 
 Bonelli-Adams Co 
 
 
 
 Boston, Mass. 
 
 
 Bonnycastle Terrace 
 
 Louisville, Ky. 
 
 
 
 
 
 Seller reserves 
 
 Thorpe Bros. 
 Minneapolis, Minn. 
 
 right to change 
 restrictions 
 with excep- 
 tions 
 
 Brookline Hills Sub'n 
 
 Brookline, Mass 
 
 
 
 Cuyahoga View Heights 
 
 Hoiles & Hedden Co. 
 Cuyahoga Falls, Ohio 
 
 Easements re- 
 served by seller 
 
 Seller reserves 
 right to mod- 
 ify 
 
 
 
 
 Sp-ingfield, Mass. 
 
 
 
 
 
 Baltimore, Md. 
 
 
 
 Easements re- 
 
 
 Locust Valley, L. I. 
 
 served by 
 ' seller 
 
 
52 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Table IV. Restrictions Pertaining to 
 
 the Rights, Powers and Duties of 
 
 the Subdivider {Continued) 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 Utility 
 Installation 
 
 Reservations 
 
 and 
 Modifications 
 
 Cushing's Island 
 
 
 
 Casco Bay, Me. 
 
 
 
 
 
 Hogle & Mawdsley 
 Carmel, Cal. 
 
 
 Devonshire Manor Annex . . . 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 Seller reserves 
 right to peti- 
 tion 
 
 
 
 Seller reserves 
 right to peti- 
 tion 
 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 
 
 
 S. S. Berry 
 Chicago, 111. 
 
 
 Estudillo Estates 
 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 
 
 
 Chas. P. Gray Co. 
 Chicago, 111. 
 
 
 
 Seller reserves 
 right to enter 
 for installation 
 
 Seller may 
 
 Thorpe Brothers 
 Minneapolis, Minn. 
 
 modify restric- 
 tions with ex- 
 ceptions 
 
 Forest Hills Gardens 
 
 Sage Foundation Homes 
 Long Island 
 
 Seller reserves 
 right to enter 
 easements 
 
 Seller may 
 modify with 
 consent of 
 owners 
 
 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 requires con- 
 sent of Own- 
 ers' Assn. 
 
 
 
 
 Providence, R. I. 
 
 
 Gatewood Gardens 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 
 Great Neck Hills 
 
 Easements re- 
 served by 
 seller 
 
 
 Great Neck, R. I. 
 
 
 
 
 
 Guy M. Rush 
 Los Angeles, Cal. 
 
 assign powers; 
 may modify 
 with consent 
 of Assn. 
 
 Guilford 
 
 
 
 Baltimore County, Md. 
 
 assign powers; 
 may modify 
 with consent 
 of owners 
 
 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 Harroun Park Sub'n 
 
 Currier Inv. Co. 
 Detroit, Mich. 
 
 
 
 Highland Park Addition .... 
 Krenn & Dato, Inc. 
 Chicago, III. 
 
 Seller reserves 
 right to peti- 
 tion 
 
 
 Howard-Lincoln, etc., Add'n. 
 Krenn & Dato 
 Chicago, III. 
 
 
 
 
 
 
 George R. Morris Org'n 
 Baltimore, Md. 
 
 
 dividual subdivider to examine carefully 
 the laws on this point in the state 
 within which he is operating before 
 framing his racial restrictions. 
 
 Rights, Powers and Duties of the 
 Subdivider 
 
 This section includes a variety of 
 items, one of the most important of 
 which has to do with the provision of 
 improvements and installation of the 
 utilities. In most of the subdivisions 
 included here at least the first improve- 
 ments have usually been supplied by the 
 developer. Few of the deeds even men- 
 tion them. An exception is a deed in 
 which the subdivider states that he will 
 provide such improvements as paving, 
 sidewalks, sewer, water and gas mains 
 and electric light lines running to the 
 curb line of the individual lots. 
 
 More usual are the 4eeds which define 
 the easements to be provided for the 
 private utility connections. In the case 
 of such easements it is customary for 
 the seller to reserve the right of ingress 
 and egress upon these easements for the 
 purpose of installing the utilities. A 
 typical restriction of this kind states 
 that 
 
 "Easements and rights of way are hereby 
 expressly reserved by The Baker Estates in, 
 upon and over the rear five (5) feet and three 
 (3) feet on each side of each lot shown on the 
 plot, and also in, upon and over the strips 
 of land indicated as reservations, rights of 
 way, streets, lands and paths for the follow- 
 ing purposes: 
 
 "For the erection, construction and main- 
 tenance of poles, wires and conduits, and the 
 necessary or proper attachments in connec- 
 tion therewith for the transmission of elec- 
 tricity for light and power and for telephone 
 and other purposes: 
 
 "For the construction and maintenance of 
 storm-water drains, land drains, public and 
 private sewers, pipe lines for supplying gas 
 and water, and for any other public or quasi- 
 public utility or function conducted, main- 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 53 
 
 tained, furnished, or performed by or in any 
 method beneath the surface of the ground. 
 
 "The Baker Estates shall have the right 
 to enter and to permit others to enter said 
 reserved strip of land for any of the purposes 
 for which said easements and rights of way 
 are reserved. 
 
 "The Baker Estates reserves the right at 
 the time of, or after, grading any streets, or 
 any part thereof, to enter upon any abutting 
 lot and grade the portion of such lot adjacent 
 to such street to a slope of 2 to i, but The 
 Baker Estates shall not be obliged to do such 
 grading or to maintain the slope." 13 
 
 Restrictions of this class should contain, 
 in addition to the right to pass and re- 
 pass, the right to erect poles or conduits. 
 Failure to include such provision is often 
 a hindrance to utility companies for 
 without it they may be liable for tres- 
 pass. Adequate easements for utility 
 installation and maintenance are par- 
 ticularly important on private rights of 
 way, i. e., when streets have not been 
 dedicated to the municipality. 
 
 The other most common duty with 
 respect to the utilities is the reservation 
 by the subdivider of the right to petition 
 for their installation. A restriction to 
 this effect may read as follows: 
 
 "Said Second Party hereby further ap- 
 points Bills Realty, Inc., as agent of said 
 Second Party to petition for the installation 
 of sewer, gas and water mains, street lighting 
 and street paving in connection with said 
 premises by special assessment, or to con- 
 tract for the installation in the streets of 
 said Indian Hill Estates Subdivision or any 
 sewer, water and gas mains, street lights and 
 ornamental posts therefor, street paving, 
 telephone and electric wiring conduits by 
 private contract, and First Party agrees to 
 pay all the installments of such special as- 
 sessments or the pro rata proportion of the 
 cost thereof, as hereinabove provided, except 
 for sidewalks, street paving and storm 
 sewers. 14 
 
 Table IV. Restrictions Pertaining to 
 
 the Rights, Powers and Duties of 
 
 the Subdivider {Continued) 
 
 13 Alleghany Furnace, The Baker Estates, Altoona, 
 
 14 Indian Hill Estates, Bills Realty, Inc., Chicago, 111. 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 Utility 
 Installation 
 
 Reservations 
 
 and 
 Modifications 
 
 
 Seller reserves 
 right to peti- 
 tion 
 
 
 Bills Realty Co. 
 Chicago, 111. 
 
 
 Kenilworth Highlands Sub'n . 
 Wittbold Realty Co. 
 Chicago, 111. 
 
 
 
 A. H. Kraus Co 
 
 
 
 Chicago, 111. 
 
 
 
 
 
 Perry Park, Colo. 
 
 
 Laudermilk Villa 
 
 B. H. Laudermilk Co. 
 Chicago, 111. 
 
 
 
 Lake Shore Highlands 
 
 Oakland, Cal. 
 
 
 Seller reserves 
 right to mod- 
 ify 
 
 
 
 
 Blair Home Co. 
 Altoona, Pa. 
 
 
 
 Right of way 
 reserved 
 
 
 Seattle, Wash. 
 
 right to mod- 
 ify 
 
 Maple Hill 
 
 F. B. McKibbin Co. 
 Lansing, Mich. 
 
 
 
 
 
 
 Spokane, Wash. 
 
 
 Little Rock, Ark. 
 
 
 
 Milwaukee-Howard Sub'n... . 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 
 
 
 
 Lake Wales, Fla. 
 
 modify with 
 consent of 
 owners 
 
 Morningside Heights 
 
 R. C Erskine & Co. 
 Seattle, Wash. 
 
 
 
 Newton Blvd. Sub'n 
 
 Newton, Mass. 
 
 
 
 Oak Hill Village 
 
 
 
 Arnold Hartman 
 Boston, Mass. 
 
 requires con- 
 sent of owners 
 
 
 
 
 F. W. Norris Co. 
 Boston, Mass. 
 
 
 Pacific Southwest Bank 
 
 Los Angeles, Cal. 
 
 
 
 Pal os Verdes Estates 
 
 Los Angeles, Cal. 
 
 
 Modification 
 requires con- 
 sent of owners 
 
 
 Seller reserves 
 right to enter 
 and make im- 
 provements 
 
 
 Jemison & Co. 
 Birmingham, Ala. 
 
 right to mod- 
 
 ify 
 
 
 
 Seller reserves 
 
 Baltimore County, Md. 
 
 right to assign 
 
 
 
 
 Mason-McDuffie Co. 
 San Francisco, Cal. 
 
 sign; may 
 modify with 
 consent of 
 Homes Assn. 
 
54 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Table IV. Restrictions Pertaining to 
 
 the Rights, Powers and Duties of 
 
 the Subdivider {Continued) 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 Utility 
 Installation 
 
 Reservations 
 
 and 
 Modifications 
 
 
 
 
 Louisville, Ky. 
 
 
 
 
 
 New York City 
 
 unrestricted 
 areas 
 
 
 
 
 Baltimore County, Md. 
 
 right to assign 
 
 
 Seller reserves 
 right to peti- 
 tion 
 
 
 Van Sweringen Co. 
 Cleveland, Ohio 
 
 modify 
 
 
 
 
 Calgary, Alberta 
 
 
 S. Bloomfield Highlands 
 
 Michigan Inv. Co. 
 Detroit, Mich. 
 
 
 Modification 
 requires con- 
 sent of owners 
 
 
 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 
 Easements re- 
 served by 
 seller 
 
 
 Whitcomb & Keller 
 South Bend, Ind. 
 
 unrestricted 
 areas; may as- 
 sign; may 
 modify with 
 exceptions 
 
 
 Installed 
 largely by 
 seller 
 
 
 City Housing Corp. 
 New York City 
 
 
 
 Easements re- 
 served on rear 
 lines 
 
 
 No. Andover, Mass. 
 
 
 Tilden Realty Corp 
 
 Utica, N. Y. 
 
 
 
 Sunset Hill 
 
 Easements 
 granted to 
 city; seller will 
 install 
 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 
 
 Easements re- 
 served 
 
 
 Victoria, B. C. 
 
 right to mod- 
 ify and assign 
 
 
 Easements re- 
 served on rear 
 lines 
 
 
 Wellesley, Mass. 
 
 
 
 Easements re- 
 served 
 
 
 Bowie & Trent 
 San Benito, Tex. 
 
 
 
 
 
 Scarborough, N. Y. 
 
 modify height 
 and set-back 
 rules; may as- 
 sign powers 
 
 Vinsetta Park Sub'n 
 
 Vinsetta Land Co. 
 Detroit, Mich. 
 
 Provided by 
 seller 
 
 
 Los Angeles, Cal. 
 
 
 
 Woodmar 
 
 Woodmar Realty Co. 
 Hammond, Ind. 
 
 
 
 
 
 
 William Zelosky 
 Chicago, 111. 
 
 
 Westwood Sub'n 
 
 Van Alstine Land Co. 
 Detroit, Mich. 
 
 
 
 Another very important reservation 
 which subdividers frequently make is the 
 retention of the power to alter or modify 
 the restrictive covenants at will. Some- 
 times this reservation is stated without 
 qualification as 
 
 "The seller . . . reserves the right to 
 change or modify the restrictions on this or 
 any property in Redmont Park." 15 
 
 In general the retention of so large a 
 power by the subdivider may be said 
 to be undesirable. It affords an oppor- 
 tunity to manipulate the affairs of the 
 subdivision in his own interest. But in 
 the hands of a conscientious subdivider, 
 one who retains an interest in the de- 
 velopment, it may be a good policy, 
 particularly in an emergency in which 
 prompt action is needed. A restriction 
 of this kind would seem to have very 
 definite effect upon the value of the lots 
 in the subdivision. It would produce a 
 feeling of insecurity as to what might 
 happen next, which would tend to lower 
 the price that could be obtained for the 
 lots. 
 
 More usual, however, is a qualified 
 reservation of power. Qualifications 
 may take any one of several forms. The 
 subdivider may reserve the right to 
 modify only certain specific restrictions. 
 When this form is used, it is usually only 
 the restrictions pertaining to the physi- 
 cal development of the lots which may 
 be thus arbitrarily modified. As a corol- 
 lary of this proposition is the qualifi- 
 cation which permits the developer to 
 modify certain restrictions only within 
 definite limits. For instance, he may 
 reduce the setback requirement but not 
 bring it below a specified minimum. 
 Another form of qualification is that 
 which states that all clauses except 
 certain designated ones are subject to 
 this power. The exceptions in this case 
 
 15 Jemison & Co., Inc., Birmingham, Ala. 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 55 
 
 are usually the racial restrictions and 
 those which enforce the developer's 
 zone plan or prevent the intrusion of 
 nuisances. Finally, this power of the 
 subdivider may be limited by requiring 
 the consent of the lot owner or owners 
 affected. These illustrations merely 
 show that the blanket reservation of 
 power to modify as exemplified in the 
 above quotation (p. 54) is the exception 
 rather than the rule. It is impractical 
 to give examples of all the various forms 
 of modification clauses, but the following 
 example is fairly representative and in- 
 clusive. 
 
 "Provided that the vendor shall have and 
 does hereby reserve the right in the sale and 
 conveyance of any of said lots, to change, 
 alter or annul any of the provisions in the 
 foregoing paragraphs or in any restrictions 
 added hereto, except those in paragraphs 
 numbered 1 and 8 (providing for residential 
 development of all but certain designated 
 lots and for racial restriction) and it may at 
 any time thereafter, with the consent in 
 writing of the then record owner of any lot 
 or lots, change, alter or annul any such pro- 
 visions as to such lot or lots, or which may, 
 in such sale and conveyance, be established 
 by it, such change to be effectual without the 
 consent of the owners of any other lot or 
 lots, but no change shall be made at any time 
 in the provisions of paragraphs 1 and 8 nor 
 in the other paragraphs which will permit 
 the erection or maintenance of any residence 
 nearer than 30 feet to the front lot line as 
 above provided, nor nearer than 3 feet to 
 either side line, nor shall the required front- 
 age of land to be used and maintained with 
 any residence be reduced more than 5 feet 
 below the minimum number of feet required 
 for each residence without the written con- 
 sent of the vendor, or its successors, and the 
 consent of 50% of the owners of the other 
 lots in the same block fronting the same 
 street, and of 50% of the owners of the lots 
 in the opposite block fronting the same 
 street." 16 
 
 Another reservation of this same gen- 
 eral nature is that by which the sub- 
 
 divider sets aside certain parcels in the 
 subdivision without restrictions. 17 The 
 existence of such areas which are not 
 subject to the same restraints as the 
 other lots in the development may well 
 cause prospective purchasers some un- 
 easiness. An unwise use of these areas 
 could seriously injure the entire develop- 
 ment and uncertainty as to their prob- 
 able use might retard sales in the sub- 
 division, at least sales of lots contiguous 
 to or within the influence of those 
 unrestricted parcels. From the point of 
 view of both subdivider and lot pur- 
 chaser the wisdom of this reservation of 
 power may be questioned. 
 
 A final consideration in this section is 
 the subdivider's reservation of the right 
 to assign his powers and duties to an- 
 other. This does not mean that he will 
 sell out his interest to another who 
 would be free to ignore the obligations 
 originally assigned to the developer. 
 The clause conveying the right to assign 
 generally contains the provision that the 
 assignee will undertake the duties of the 
 original subdivider as set forth in the 
 deed. The following paragraph states 
 this position clearly: 
 
 "Any or all of the rights and powers of 
 Westgate Park Company herein contained 
 may be assigned to any corporation or asso- 
 ciation which is now organized or which may 
 hereafter be organized, and which will as- 
 sume the duties of Westgate Park Company 
 hereunder pertaining to the particular rights 
 and powers assigned, and upon any such 
 corporation or association evidencing its 
 consent in writing to accept such assignment 
 and assume such duties, it shall, to the extent 
 of such assignment, have the same rights and 
 powers and be subject to the same obliga- 
 tions and duties as are given to and assumed 
 by Westgate Park Company herein." 18 
 
 16 Brown Section, Thorpe Bros., Minneapolis, Minn. 
 
 17 ". . . the parcels marked 'Reserved' on said 
 map are not restricted in any way." (Scarsdale Estates, 
 New York City). 
 
 ls St. Francis Wood, Mason-McDuffie Co., San 
 Francisco, Calif. 
 
56 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 The clauses which outline the rights, 
 powers and duties of the subdivider are 
 likely to undergo considerable change 
 in the future. With the increase of "sub- 
 division developments," as opposed to 
 mere "subdivisions," these clauses will 
 have to be expanded and refined to 
 cover the added responsibilities which 
 such developments will entail for the 
 subdivider. Elasticity and flexibility in 
 these restrictions are essential to secur- 
 ing a well-balanced development. But 
 it should be emphasized that these dis- 
 cretionary powers vested in the sub- 
 divider should be applied strictly as an 
 administrative function, that is, in pro- 
 moting the developer's plan for the 
 physical development of the area and 
 not as a merchandising function to pro- 
 mote the quick sale of lots. 
 
 Duration of Restrictions 
 
 Discussion of the duration of deed re- 
 strictions falls logically into two parts: 
 (i) consideration of the original term for 
 which such clauses are drawn, and (2) 
 length of the periods as well as the 
 methods provided for continuing these 
 restrictions. 
 
 Determination of the original terms 
 of deed restrictions is not so simple as 
 would appear, for many instruments 
 contain a statement, for example, to the 
 effect that "all of the restrictions, con- 
 ditions, covenants, charges and agree- 
 ments contained herein shall run with 
 the land and continue until January 
 first, 1950." The date when such clauses 
 originated is not given, hence the diffi- 
 culty in ascertaining accurately their 
 duration in years. Information as to 
 duration has been secured for 52 of the 
 84 deeds examined. In the case of the 
 Olmsted group, actual duration was 
 given in 20 of the 29 instances. Of the 
 group of 55 newer instruments, actual 
 duration was given in 18 cases and it was 
 
 possible to secure a fairly accurate esti- 
 mate of duration for 14 other subdivi- 
 sions. In all cases where estimates were 
 made the date of termination was given 
 in the deed. In order to determine the 
 date of origination reference was made 
 to such items as the date on which the 
 plat of subdivision was filed, the date 
 when payments should begin, the date 
 by which certain first improvements 
 would be completed, the date of the 
 form, etc. But throughout the discussion 
 the distinction will be maintained be- 
 tween the durations which are specifi- 
 cally stated and those which have been 
 estimated. 
 
 The findings as to durations in the 
 various groups of restrictions may be 
 summarized as follows: 
 
 Groups of Restrictions 
 
 Number 
 
 of 
 
 Cases 
 
 Average 
 Duration 
 in Years 
 
 Total 
 
 Olmsted Group 
 
 Actual duration 
 
 52 
 
 20 
 
 18 
 14 
 
 34-4 
 39-7 
 
 27.4 
 35-9* 
 
 New group 
 
 Actual duration 
 
 Estimated duration 
 
 * This figure includes the very long period (estimated at 101 
 years) of the restrictions drawn by the Van Sweringen Co. of 
 Cleveland, O., for Shaker Heights. This period is so exception- 
 ally long that it seemed advisable to calculate the average for 
 this group without this figure. Therefore the average for the 
 remaining 13 restrictions is 30.8 years, which gives a truer pic- 
 ture of the facts for this group and puts it more in line with that 
 portion of the group for which the actual data are available. 
 
 A surprising degree of uniformity is 
 revealed by these figures. The durations 
 tend to cluster about the 33-year mark, 
 or the length of a generation which is 
 held by some students of the problem to 
 be a logical term for restrictions. Pro- 
 ponents of 33-year restrictions argue 
 that a man buys a homesite when he is 
 starting his career and under the protec- 
 tion of a 33-year restriction he is able to 
 live most of his life there. By the end of 
 that time his family wants to move away 
 and the restriction will have served its 
 purpose. The findings of this analysis 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 57 
 
 are therefore particularly interesting in 
 the light of this contention. The discus- 
 sion thus far is not to be interpreted as 
 advocating a 33-year duration for re- 
 strictive clauses. The term should be 
 decided in the light of certain economic 
 factors which exist for each particular 
 subdivision. These will be discussed 
 later. 
 
 Comparison of the average duration 
 of restrictions for the Olmsted group and 
 for the new group shows 39.7 years for 
 the former and 31.1 years for the latter. 
 This difference may be explained in part 
 by the differences in the properties 
 covered. The Olmsted group probably 
 represents a higher general level of 
 development than does the newer group 
 and it seems to be true in general that 
 the more highly developed the sub- 
 division, the longer the term of the re- 
 strictions. For example, the duration in 
 Shaker Heights is 101 years, Roland 
 Park 63 years, Glen Oaks 46 years, etc. 
 Another explanation for the difference 
 may be found in the increased rapidity 
 of city growth which is a particularly 
 dominating influence in the cases in- 
 cluded in the newer group. In other 
 words, the speed with which land 
 changes from one use to another as a 
 result of city growth makes the sub- 
 divider hesitate to bind the land to a 
 given usage for a very long period. 
 
 The difficulties inherent in deciding 
 upon the proper duration of restrictions 
 are numerous. In the first place it is 
 absolutely necessary to set a definite 
 time limit. Otherwise the restrictions 
 would be judged invalid as against public 
 policy under the "rule of perpetuities." 
 The rule against perpetuities is used here 
 in its less technical sense to represent the 
 idea of remoteness. 19 The law does not 
 
 Table V. Duration of Restrictions 
 
 19 Bouvier, op. cit., article on "Perpetuity." " 'The 
 original meaning of a perpetuity is an inalienable, 
 (Continued on page 58) 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 Original 
 Term 
 
 Provisions for 
 Extension 
 
 Alleghany Furnace 
 
 Baker Estates 
 Altoona, Pa. 
 
 25 yrs. 
 
 20 yr. period with 
 consent of owners 
 of % area. 
 
 Ardmore 
 
 J. R. Robertson & Co. 
 Chicago, 111. 
 
 
 
 
 
 
 Lr .idermilk Realty Co. 
 Chicago, 111. 
 
 
 
 25 yrs. 
 
 25 yr. period with 
 consent of owners 
 of s 1 % front ft. 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 
 35 yrs. 
 
 
 Anchorage, Ky. 
 
 
 
 
 
 G. R. Morris Org'n 
 Baltimore, Md. 
 
 
 
 48 yrs. 
 
 75% of owners 
 may extend period 
 
 New Britain, Conn. 
 
 
 
 
 H. F. Bowse 
 Cleveland, Ohio 
 
 
 
 
 
 Brookline, Mass. 
 
 
 Belmont Country Club 
 
 A. T. Mcintosh Co. 
 Chicago, 111. 
 
 
 
 
 28 yrs. 
 
 
 Ann Arbor, Mich. 
 
 consent of owners 
 of % of land 
 
 
 To 
 1950 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 Beacon Falls 
 
 Beacon Falls, Conn. 
 
 
 
 
 
 
 Boston, Mass. 
 
 
 
 58 yrs. 
 
 
 Louisville, Ky. 
 
 
 
 To 
 1964 
 
 
 Thorpe Bros. 
 Minneapolis, Minn. 
 
 
 
 36 yrs. 
 
 
 Brookline, Mass. 
 
 
 Cuyahoga View Heights 
 
 Hoiles & Hedden Co. 
 Cuyahoga Falls, Ohio 
 
 1976 
 
 Continue indefi- 
 nitely 
 
 Colony Hills 
 
 i9S° 
 
 
 Springfield, Mass. 
 
 consent of owners 
 of % of land 
 
 Cityco Realty Co 
 
 
 
 Baltimore, Md. 
 
 
 
 1971 
 
 
 Locust Valley, L. I. 
 
 original lots 
 
 
 
 
 Casco Bay, Me. 
 
 
 
 
 
 Hogle & Mawdsley 
 Carmel, Cal. 
 
 
 Devonshire Manor Annex 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 To 
 i960 
 
 
58 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Table V. Duration of Restrictions 
 
 {Continued) 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 Original 
 Term 
 
 Provisions for 
 Extension 
 
 Devonshire Manor 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 To 
 •950 
 
 
 
 
 
 S. S. Berry 
 Chicago, III. 
 
 
 Esiudillo Estates 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 To 
 1950 
 
 
 
 20 yrs. 
 
 
 Chas. P. Gray Co. 
 Chicago, 111. 
 
 
 
 To 
 1964 
 
 
 Thorpe Brothers 
 Minneapolis, Minn. 
 
 
 Forest Hills Gardens 
 
 Sage Foundation Homes 
 Long Island 
 
 To 
 1950 
 
 20 yr. period with 
 consent of owners 
 of % area 
 
 Fernside 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 To 
 >95o 
 
 20 yr. period with 
 consent of owners 
 of 65% area 
 
 Freeman Sub'n 
 
 Providence, R. I. 
 
 To 
 1955 
 
 
 Gatewood Ga.dens 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 
 Great Neck Hills 
 
 To 
 1940 
 
 
 Great Neck, L. I. 
 
 
 Glen Oaks 
 
 To 
 
 1973 
 
 20 yr. period with 
 
 Guy M. Rush 
 Los Angeles, Cal. 
 
 consent of owners 
 of J4 area 
 
 Guilford 
 
 To 
 1950 
 
 20 yr. period with 
 
 Baltimore County, Md. 
 
 consent of J :i own- 
 ers 
 
 
 To 
 '950 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 
 
 
 Currier Inv. Co. 
 Detroit, Mich. 
 
 
 Highland Park Addition 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 To 
 i960 
 
 
 Howard-Lincoln, etc., Sub'n. . . 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 To 
 i960 
 
 
 
 
 
 Geo. R. Morris Org'n 
 Baltimore, Md. 
 
 
 
 
 
 Bills Realty Co. 
 Chicago, 111. 
 
 
 Kenilworlh HgMs. Subd'n 
 
 Wittbold Realty Co. 
 Chicago, 111. 
 
 
 
 A. H. Kraus Co 
 
 
 
 Chicago, 111. 
 
 
 
 
 
 Perry Park, Colo. 
 
 
 
 
 
 B. H. Laudermilk Co. 
 Chicago, III. 
 
 
 favor an interest which vests to a remote 
 period. This attitude is in harmony 
 with the economic point of view which 
 recognizes the undesirability of the pres- 
 ent tying the hands of the future. This 
 principle is particularly significant in its 
 application to transactions involving 
 real estate because of the long-time effect 
 of an individual's act when applied to 
 land. In determining the exact period of 
 the restrictions two major elements are 
 to be considered: (1) the character of 
 the proposed development and (2) the 
 character and expected growth of the 
 community of which the subdivision is a 
 part. 
 
 There are two aspects to the problem 
 of the relation of the character of the 
 development to the duration of the re- 
 strictive covenants. The most important 
 is to make sure that the restrictions shall 
 continue in force long enough to estab- 
 lish the character of the district. In 
 other words, the minimum duration 
 must cover the period of sale and the 
 period required to see the major portion 
 of the area built up. Some hold that this 
 minimum duration is sufficient, arguing 
 that the built-up area can maintain it- 
 self sufficiently against encroaching uses. 
 Others, however, favor a longer restric- 
 tive period on the ground that the de- 
 velopment should be protected during 
 its probable life in the use for which it 
 was originally designed. The latter posi- 
 tion appears to be more logical, for it 
 would seem that protection is most desir- 
 able when the investment is complete. 
 The intrusion of an inharmonious use 
 into a built-up area would seem to be 
 
 (Footnote 19 continued from page 57) 
 indestructible interest. The second artificial meaning 
 is an interest which will not vest to a remote period. 
 This latter is the meaning which is attached to the term 
 when the rule against perpetuities is spoken of;' (Gray, 
 Perp. §140.) The author last cited considers it a matter 
 of regret that the rule should not have been known as 
 the rule against remoteness, rather than the rule as 
 against perpetuities." 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 59 
 
 more serious than such intrusion into a 
 comparatively unbuilt district. 
 
 The second aspect has to do with the 
 kind of development which it is proposed 
 to create. It is impractical to put a 30- 
 or 40-year term on restrictions in con- 
 nection with a development for medium- 
 priced homes. The improvements on 
 such subdivisions cannot be expected 
 to have as long a life as those in the 
 high-priced developments. The rate 
 of obsolescence is more rapid. Thus, 
 the house may have deteriorated seri- 
 ously in 25 years. But rather than spend 
 a considerable amount on it the owner 
 will let it continue to run down for the 
 balance of the restriction period, par- 
 ticularly if the type of use is likely to 
 change at the end of the period. A rela- 
 tion should therefore be established 
 between the life of the improvement and 
 the duration of the restriction. 
 
 A more important factor in the de- 
 termination of proper duration is the 
 expected growth of the city. In a city 
 which is growing rapidly it is obviously 
 wise to restrict property for a shorter 
 period than in a city of slov/er growth. 
 Two results of failure to calculate dura- 
 tion properly may be noted. From the 
 point of view of the city unwise restric- 
 tions may create blighted districts which 
 stand in the way of the natural growth 
 of the city. From the point of view of 
 the owners of the restricted property, 
 they may no longer supply the protec- 
 tion which was their aim. If the city 
 grows up around them and different uses 
 come up to the very borders of the sub- 
 division, the character of the commu- 
 nity may be practically ruined. This 
 process may be called the obsolescence 
 of restrictions. 
 
 Extension of Restrictions 
 
 The extension of the period of restric- 
 tion consists of three elements: (1) the 
 
 Table V. Duration of Restrictions 
 {Continued) 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 Original 
 Term 
 
 Provisions for 
 Extension 
 
 Lake Shore Highlands 
 
 Oakland, Cal. 
 
 To 
 1950 
 
 20 yr. period with 
 consent 65% of 
 land 
 
 
 20 yrs. 
 
 20 yr. period 
 
 Blair Home Co. 
 Altoona, Pa. 
 
 
 To 
 1965 
 
 
 Seattle, Wash. 
 
 
 Maple Hill 
 
 F. B. McKibbin Co. 
 Lansing, Mich. 
 
 
 
 
 
 
 Spokane, Wash. 
 
 
 
 
 
 Little Rock, Ark. 
 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 To 
 i960 
 
 
 
 To 
 1940 
 
 20 yr. period with 
 consent of ma- 
 jority 
 
 Lake Wales, Fla. 
 
 
 To 
 1930 
 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 Newton Blvd. Sub'n 
 
 Newton, Mass. 
 
 To 
 1930 
 
 
 Oak Hill Village 
 
 30 yrs. 
 
 
 Arnold Hartman 
 Boston, Mass. 
 
 
 Oyster Harbor, Inc 
 
 F. W. Norris Co. 
 Boston, Mass. 
 
 
 
 Pacific Southwest Bank 
 
 Los Angeles, Cal. 
 
 To 
 1936 
 
 
 
 37 yrs. 
 
 
 Los Angeles, Cal. 
 
 consent of owners 
 of Vi area 
 
 
 
 
 Jemison & Co. 
 Birmingham, Ala. 
 
 
 Roland Park 
 
 To 
 i960 
 
 
 Baltimore County, Md. 
 
 
 
 33 yrs. 
 
 
 Mason-McDuflfie Co. 
 San Francisco, Cal. 
 
 consent of owners 
 of x /i area 
 
 
 
 
 Louisville, Ky. 
 
 
 
 
 
 New York City 
 
 
 
 To 
 1920 
 
 
 Baltimore County, Md. 
 
 
 
 To 
 2026 
 
 
 Van Sweringen Co. 
 Cleveland, Ohio 
 
 changed by con- 
 sent of owners in 
 block 
 
 
 
 
 Calgary, Alberta 
 
 
 Michigan Inv. Co. 
 Detroit, Mich. 
 
 To 
 •945 
 
 
6o 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Table V. Duration of Restrictions 
 
 {Continued) 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 Original 
 Term 
 
 Provisions for 
 Extension 
 
 
 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 
 25 yrs. 
 
 10 yr. period with 
 consent of owners 
 of 51% front ft. 
 
 Whitcomb & Keller 
 South Bend, Ind. 
 
 Sunnyside 
 
 City Housing Corp. 
 New York City 
 
 
 
 Tavern Acres 
 
 No. Andover, Mass. 
 
 To 
 1970 
 
 
 Tilden Realty Corp 
 
 
 
 Utica, N. Y. 
 
 
 Sunset Hill 
 
 25 yrs. 
 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 consent of owners 
 of 51% front ft. 
 
 
 To 
 1965 
 
 
 Victoria, B. C. 
 
 
 
 To 
 1970 
 
 
 Wellesley, Mass. 
 
 
 
 15 yrs. 
 
 
 Bowie & Trent 
 San Benito, Tex. 
 
 
 Vanderlip Sub'n 
 
 Scarborough, N. Y. 
 
 To 
 
 1945 
 
 With consent of 
 75% of owners 
 
 
 To 
 1935 
 
 
 Vinsetta Land Co. 
 Detroit, Mich. 
 
 consent of owners 
 of % area 
 
 
 
 
 Los Angeles, Cal. 
 
 
 
 50 yrs. 
 
 After 20 yrs. 60% 
 
 Woodmar Realty Co. 
 Hammond, Ind. 
 
 frontage may ask 
 abrogation 
 
 
 To 
 1970 
 
 
 William Zelosky 
 Chicago, 111. 
 
 
 
 To 
 1 935 
 
 
 Van Alstine Land Co. 
 Detroit, Mich. 
 
 sent of owners of 
 % lots 
 
 length of the extension period; (2) the 
 legal procedure involved in the exten- 
 sion; and (3) the question of who has the 
 power to make such extension. The most 
 common length of the extension period 
 is 20 years, with an occasional 10- or 25- 
 year period mentioned. The legal pro- 
 cedure usually involves the execution of 
 a formal statement which sets forth the 
 intention to continue the restrictions 
 and which shall be filed with the recorder 
 of deeds within a specified time before 
 the expiration of the original term. 
 
 Somewhat less uniform are the pro- 
 visions with respect to the consent of the 
 
 owners required for such a continuation. 
 The necessary number is denned in 
 various ways: the owners of a certain 
 percentage of the front footage in the 
 subdivision, the owners of a certain per- 
 centage of the total area, or a certain 
 percentage of all the owners. 
 
 A typical restriction embodying these 
 points follows: 
 
 "At the end of this time, January 1, 1950, 
 the above restrictions shall be extended for a 
 period of twenty years from that date and 
 thereafter for successive periods of twenty 
 (20) years. On the date of expiration of each 
 extension the restrictions may be removed, 
 modified or altered for the whole or part of 
 the restricted area, if one year prior to 
 January i, 1950, and one year prior to the 
 expiration of each extension, appropriate 
 instruments in writing, consenting to the 
 removal, modification or alteration of the 
 restrictions, shall be signed, executed and 
 acknowledged by the owners (including The 
 Baker Estates, if they still retain the fee to 
 one or more lots, but not including mort- 
 gagees) of not less than two-thirds of the 
 land included in said tract, exclusive of 
 streets and parks intended for the general 
 use of the owners of the land included in said 
 tract; and provided, further, that any such 
 removal may be made for the whole or part 
 of above mentioned area, with the provision 
 that in no case the area shall be less than the 
 total frontage within a block on a certain 
 street or avenue, and provided further, that 
 such instrument shall be filed with the 
 Recorder of Deeds of Blair County at least 
 one year prior to the expiration of the first 
 twenty-five (25) year period or any of the 
 twenty (20) year periods afterward." 20 
 
 A restriction of this nature places the 
 burden upon those lot owners who wish 
 to alter the restrictions. In other words, 
 the restriction provides for the auto- 
 matic renewal of the covenants for 20- 
 year periods unless provision for modifi- 
 cation is made according to certain 
 prescribed rules. But those lot owners 
 who are desirous of making alterations 
 are charged with the responsibility of 
 
 20 Alleghany Furnace, Baker Estates, Altoona, Pa. 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 61 
 
 initiating them. This method is most 
 common and is advocated by such a well 
 known developer as Mr. J. C. Nichols. 
 Others, including Mr. Bouton, the de- 
 veloper of Roland Park, advocate plac- 
 ing the burden on those who wish to ex- 
 tend the restrictions. 
 
 An interesting proposal in connection 
 with the whole problem of the duration 
 of restrictive argeements is that pro- 
 vision be made for the breaking of such 
 restrictions upon consent of a majority 
 of the owners. One objection to this pro- 
 posal is that 51% is a rather small margin. 
 Besides, although a majority of the 
 owners may be ready to transfer their 
 property to a higher use, the city or sur- 
 rounding area may not be able to absorb 
 at once or even within a reasonable time 
 the total area of the subdivision which 
 would be thrown open to the higher use 
 by the vote of 51% of the lot owners. 
 Furthermore, only a small part of the lot 
 owners will be able to take advantage of 
 the higher use and the others not so 
 favorably situated will suffer as a result. 
 
 In summarizing it should be empha- 
 sized that no general rule can be laid 
 down for determining the proper dura- 
 tion of deed restrictions. This matter 
 must be calculated for each individual 
 subdivision in the light of the conditions 
 which will influence its future. There are 
 certain limits, however, within which 
 this determination of proper duration 
 will take place. The minimum length 
 of the restrictions will be such as to in- 
 sure approximately complete develop- 
 ment of the tract. The subdivider must 
 protect the area until its character is 
 established. At the same time he does 
 not want to preclude the transition of 
 that property into a higher use when 
 that use is economically advisable. 
 Therefore, the maximum limit of the 
 duration will be determined by the ex- 
 pectancy of change in use. But the 
 
 Table VI. Clauses Providing for 
 Enforcement of Restrictions 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 By Whom 
 
 What Means 
 
 Alleghany Furnace 
 
 Baker Estates 
 Altoona, Pa. 
 
 Run with land 
 
 Remove or abate 
 violation 
 
 Ardmore 
 
 J. R. Robertson & Co. 
 Chicago, 111. 
 
 
 
 
 
 
 Laudermilk Realty Co. 
 Chicago, 111. 
 
 
 Armour Hills 
 
 J. C. Nichols Inv. Co.. 
 Kansas City, Mo. 
 
 Run with land. 
 
 Injunction to 
 prevent viola- 
 tion 
 
 Anchorage Heights 
 
 Anchorage, Ky. 
 
 
 
 
 
 
 G. R. Morris Org'n 
 Baltimore, Md. 
 
 
 
 Reserved by 
 seller 
 
 
 New Britain, Conn. 
 
 
 Avon Center Estates . . . 
 H. F. Bowse 
 Cleveland, Ohio 
 
 Run with land 
 
 Entering to 
 abate or by bill 
 of equity 
 
 Aspinwall Hill Sub'n 
 
 Brookline, Mass. 
 
 
 
 Belmont Country Club . 
 A. T. Mcintosh Co. 
 Chicago, 111. 
 
 Run with land 
 
 
 Barton Hills 
 
 
 
 Ann Arbor, Mich. 
 
 er's expense 
 
 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 seller on viola- 
 tion 
 
 
 
 
 Beacon Falls, Conn. 
 
 
 Boston, Mass. 
 
 
 
 Bonnycastle Terrace. . . . 
 Louisville, Ky. 
 
 
 Enter to abate 
 at owner's ex- 
 pense 
 
 
 Owners' Ass'n 
 
 
 Thorpe Bros. 
 Minneapolis, Minn. 
 
 
 Brookline Hills Sub'n. . . 
 Brookline, Mass. 
 
 
 Entrance to 
 abate or by law 
 
 Cuyahoga View Heights. 
 Hoiles & Hedden Co. 
 Cuyahoga Falls, Ohio 
 
 Run with land 
 
 Seller may enter 
 and abate at ex- 
 pense of owner 
 
 Colony Hills 
 
 
 
 Springfield, Mass. 
 
 er's expense 
 
 Cityco Realty Co 
 
 Baltimore, Md. 
 
 Run with land 
 
 
 
 
 By courts 
 
 Locust Valley, L. I. 
 
 Cushing's Island 
 
 Casco Bay, Me. 
 
 
 
 
 Run with land 
 
 
 Hogel & Mawdsley 
 Carmel, Cal. 
 
 
 Devonshire Manor Annex 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 Seller and own- 
 ers 
 
 
62 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Table VI. Clauses Providing for 
 Enforcement of Restrictions 
 
 {Continued) 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 By Whom 
 
 What Means 
 
 Devonshire Manor 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 
 
 
 
 S. S. Berry 
 Chicago, 111. 
 
 
 Estudillo Estates 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 I 
 
 Reversion to 
 seller 
 
 Fairview Addition 
 
 Chas. P. Gray Co. 
 Chicago, 111. 
 
 Run with land 
 
 
 Fairway Section 
 
 Thorpe Brothers 
 Minneapolis, Minn. 
 
 
 
 Forest Hills Gardens 
 
 Sage Found'n Homes 
 Long Island 
 
 Seller and own- 
 ers 
 
 Seller may enter 
 to abate 
 
 
 Run with land 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 ers' assn. may 
 enter and abate 
 
 Freeman Sub'n 
 
 Providence, R. I. 
 
 
 
 Gatewood Gardens 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 Run with land 
 
 
 Great Neck Hills 
 
 Great Neck, L. I. 
 
 
 
 Glen Oaks 
 
 Homes Assn. 
 Run with land 
 
 
 Guy M. Rush 
 Los Angeles, Cal. 
 
 seller or Assn. 
 may abate 
 
 Guilford 
 
 
 
 Baltimore Co., Md. 
 
 
 
 Run with land 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 seller 
 
 Harroun Park Sub'n. . . . 
 Currier Inv. Co. 
 Detroit, Mich. 
 
 
 
 Highland Park Add'n . . . 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 
 Howard-Lincoln, etc. 
 Add'n 
 
 Sellers and own- 
 ers 
 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 
 
 
 Geo. R. Morris Org'n. 
 Baltimore, Md. 
 
 
 Indian Hill Estates 
 
 Bills Realty Co. 
 Chicago, 111. 
 
 
 
 Kenilworth Highlands 
 Sub'n 
 
 
 
 Wittbold Realty Co. 
 Chicago, 111. 
 
 
 A. H. Kraus Co 
 
 Chicago, 111. 
 
 Run with land 
 
 
 Lake Wauconda 
 
 Perry Park, Colo. 
 
 
 
 Laudermilk Villa 
 
 B. H. Laudermilk Co. 
 Chicago, 111. 
 
 
 
 determination of both of these limits 
 constitutes a problem in forecasting and 
 is subject to all the difficulties inherent 
 in that process. 
 
 A question might be raised as to 
 whether modifications of restrictions 
 would constitute valid grounds for not 
 enforcing the remaining clauses. The 
 consensus of opinion seems to be that, if 
 the alteration did not impair the benefit 
 of the scheme, the balance of the re- 
 strictions would continue to be enforce- 
 able. 21 The concept of privity estate is 
 the foundation upon which such opinion 
 rests. It also illustrates the importance 
 which the courts attach to a general plan 
 for improvement of the area. 
 
 Enforcement of Restrictions 
 
 This section divides itself logically 
 into two parts: (i) the agencies by which 
 the restrictions may be enforced and (2) 
 the powers that may be employed in the 
 enforcing process. 
 
 First of all, the subdivider may reserve 
 to himself the right to enforce the re- 
 strictions, but this reservation is un- 
 common. The disadvantage of such a 
 provision is patent. The subdivider's 
 interest ceases with the selling out of the 
 subdivision and his departure removes 
 the enforcing agent. The usual practice 
 is to designate these restrictive agree- 
 ments as covenants running with the 
 land, thus making them enforceable 
 by owners of the benefited land. A 
 typical example of this type of provision 
 reads as follows: 
 
 "The herein enumerated restrictions, reser- 
 vations, agreements and covenants shall be 
 deemed as covenants and not as conditions 
 hereof and shall run with the land and shall 
 bind the Grantee, heirs, executors, adminis- 
 trators and assigns . . . and the pro- 
 visions herein contained shall bind and inure 
 to the benefit of and be enforceable bv the 
 
 21 Sanjord v. Keer, 
 (19"). 
 
 N. J. F.q. 240, 8j Atl. 225 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 63 
 
 Grantor and by the owner or owners, of any 
 property in said Allotment, their legal repre- 
 sentatives, heirs, executors and assigns, and 
 failure of the Grantor or any property owner 
 to enforce any of such restrictions, covenants 
 provisions and agreements herein contained 
 shall in no event be deemed a waiver of the 
 right to do so thereafter." 22 
 
 Another agency of enforcement which is 
 becoming increasingly important is the 
 owners' association. The efficiency of 
 such an organization as an enforcing 
 agent depends, of course, upon the 
 organization itself, i.e., whether it is an 
 active or only a perfunctory body, 
 whether it is legally constituted or an 
 informal association. This question of 
 organization and powers will be dis- 
 cussed in a subsequent section. If it 
 operates efficiently and thoroughly, it no 
 doubt makes an excellent enforcing 
 medium, for it represents the interests 
 of the entire area and from the owners' 
 point of view. 
 
 The statement has been made that 
 restrictive covenants should be enforce- 
 able by the city. 23 The answer to the 
 question of who may enforce restrictions 
 lies in the answer to the question of who 
 is the owner of the land benefited 
 thereby. As a matter of law, only the 
 owners of the benefited land have the 
 powers of enforcing covenants. Certain 
 restrictions, such as setbacks, might well 
 be considered to be drawn for the benefit 
 of the city. In fact, instances of this exist. 
 Mr. Robert Whitten in response to fur- 
 ther questioning about enforcement by a 
 municipality cited instances in which 
 "the Cleveland Planning Commission 
 has in practice . . . required sub- 
 dividers of residence property to place a 
 building line on the subdivision plat and 
 
 22 Cuyahoga View Heights, Hoiles and Hedden, 
 Cuyahoga Falls, Ohio. 
 
 23 See Robert Whitten, A Research into the Economics 
 of Land Subdivisions (Syracuse: School of Citizenship 
 and Public Affairs of Syracuse University and Regional 
 Plan of New York and its Environs, 1927) p. 12. 
 
 Table VI. Clauses Providing for 
 
 Enforcement of Restrictions 
 
 {Continued) 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 By Whom 
 
 What Means 
 
 Lake Shore Highlands . . 
 Oakland, Cal. 
 
 Right reserved 
 by seller 
 
 
 
 Run with land 
 
 Seller may enter 
 and abate 
 
 Blair Home Co. 
 Altoona, Pa. 
 
 Licton Springs Pk 
 
 Seattle, Wash. 
 
 
 Seller may enter 
 and abate 
 
 Maple Hill 
 
 Run with land 
 
 
 P. B. McKibbin Co. 
 Lansing, Mich. 
 
 
 
 
 
 Spokane, Wash. 
 
 
 Justin Matthews Co. . . . 
 Little Rock, Ark. 
 
 
 
 Milwaukee-Howard, 
 
 Run with land 
 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 Mountain Lake 
 
 Lake Wales, Fla. 
 
 
 Enter and abate 
 
 Morningside Heights . . . 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 
 Newton Blvd. Sub'n. . . . 
 Newton, Mass. 
 
 
 
 Oak Hill Village 
 
 Arnold Hartman 
 Boston, Mass. 
 
 
 Remedies at law. 
 Enter and abate 
 
 F. W. Norris Co. 
 Boston, Mass. 
 
 Seller and own- 
 ers 
 
 
 Pacific Southwest Bank . 
 Los Angeles, Cal. 
 
 
 Reversion. Entry 
 to abate 
 
 Palos Verdes Estates . . . 
 Los Angeles, Cal. 
 
 Seller and own- 
 ers 
 
 Reversion to 
 seller 
 
 
 
 
 Jemison & Co. 
 Birmingham, Ala. 
 
 
 
 Seller 
 
 
 Baltimore Co., Md. 
 
 
 St. Francis Wood 
 
 Mason-McDuffie Co. 
 San Francisco, Cal. 
 
 Run with land 
 
 Seller may enter 
 and abate 
 
 
 
 
 Louisville, Ky. 
 
 
 New York City 
 
 
 
 Sudbrook 
 
 Baltimore Co., Md. 
 
 
 fio fine per day 
 after notice to 
 correct 
 
 Shaker Heights 
 
 Van Sweringen Co. 
 Cleveland, Ohio 
 
 Run with land 
 
 Seller may enter 
 and abate; re- 
 entry for breach 
 of condition 
 
 Sunalta 
 
 Calgary, Alberta 
 
 
 
 S. Bloomfield Hghlds. . . 
 Michigan Inv. Co. 
 Detroit, Mich. 
 
 Run with land 
 
 
64 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Table VI. Clauses Providing for 
 Enforcement of Restrictions 
 
 {Continued) 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 By Whom 
 
 What Means 
 
 Sunrise Addition 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 Run with land 
 
 
 Sunnymede 
 
 Whitcomb & Keller 
 South Bend, Ind. 
 
 Run with land 
 
 
 Sunnyside 
 
 City Housing Corp. 
 New York City 
 
 
 
 
 Owners 
 
 
 No. Andover, Mass. 
 
 
 Tilden Realty Corp. 
 Utica, N. Y. 
 
 
 
 Sunset Hill 
 
 Run with land 
 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 
 Victoria, B. C. 
 
 
 Enter and abate 
 at owner's ex- 
 pense 
 
 
 Owners 
 
 
 Wellesley, Mass. 
 
 
 
 Run with land 
 
 Reversion 
 
 Bowie & Trent 
 San Benito, Tex. 
 
 
 Vanderlip Sub'n 
 
 Scarborough, N. Y. 
 
 
 
 Vinsetta Park Sub'n. . . . 
 Vinsetta Land Co. 
 Detroit, Mich. 
 
 Run with land 
 
 
 Wagner-Thoreson Co. . . 
 Los Angeles, Cal. 
 
 Run with land 
 
 Reversion in 
 some cases; also 
 re-entry 
 
 Woodmar 
 
 Woodmar Realty Co. 
 Hammond, Ind. 
 
 Owners 
 
 
 Westchester 
 
 William Zelosky 
 Chicago, 111. 
 
 Run with land 
 
 Reversion 
 
 Westwood Sub'n 
 
 Van Alstine Land Co. 
 Detroit, Mich. 
 
 Run with land 
 
 
 to state on the plat that the building lines 
 were established for the benefit of the 
 city as well as for the benefit of the in- 
 dividual lot owners and that they were 
 enforceable by the city as well as by the 
 lot owners." These acts were "without 
 any legal authority" and it is doubtful 
 whether they would be upheld at law. 
 Even though in the evolution of legal 
 opinion courts should eventually sanc- 
 tion such practice in these instances, the 
 same principle would not be applicable 
 to other restrictions such as those 
 
 specifying single-family residences or all 
 drives to be on the left side of the house. 
 It is a fact, however, that municipalities 
 do benefit from private restrictions 
 through economies in improvement at 
 least, even though they may not enforce 
 these clauses. 
 
 With respect to enforcement two 
 methods are employed depending on 
 whether the restriction is a covenant or a 
 condition. As the reader will recall, 
 in the case of covenants of the type 
 discussed here the usual remedy is 
 found in equity in the form of an in- 
 junction to restrain the violation. This 
 is the accepted procedure. Yet even in 
 the restrictive agreements of some of 
 the best subdivisions it is not uncom- 
 mon to find an attempt on the part of 
 the subdivider to go further in enforcing 
 the restrictions. Frequently, under a 
 clause headed "right to abate," he as- 
 serts a right to enter the premises and 
 abate the violation. 
 
 "Violation of any restriction or condition 
 or breach of any covenant or agreement 
 herein contained shall give The Baker 
 Estates, in addition to all other remedies, 
 the right to enter upon the land upon or as to 
 which such violation or breach consists, and 
 summarily to abate and remove, at the ex- 
 pense of the owner thereof, any erection, 
 thing or condition that may exist thereon 
 contrary to the intent and meaning of the 
 provisions hereof; and The Baker Estates 
 shall not thereby be deemed guilty or any 
 manner of trespass for such entry, abate- 
 ment or removal, nor be liable to any dam- 
 ages occasioned thereby." 24 
 
 An attempt to act on the strength of 
 such a provision, however, seems danger- 
 ous, for the enforcing agent would prob- 
 ably be liable for trespass. It may be 
 useful as a basis for procedure after 
 injunctive relief has been granted by the 
 court. In the main, however, a clause of 
 this sort appears rather as a gesture on 
 
 24 Alleghany Furnace, Baker Estates, Altoona, Pa. 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 65 
 
 the part of the subdivider than as a 
 workable restriction. The matter of 
 construing covenants and conditions was 
 discussed in Chapter III. It is sufficient, 
 therefore, at this point merely to reiter- 
 ate that attempts to enforce restrictions 
 by a reverter clause are likely to fail 
 because the courts do not favor insecure 
 titles which are involved in "conditions 
 subsequent." 
 
 However, certain circumstances justify 
 the use of a condition and if the intention 
 of the parties is clear the courts will 
 sustain the restriction. It therefore 
 behooves the subdivider to be cautious 
 in the use of the reverter clause for such 
 a clause gains weight from limited and 
 well-considered use. In other words, a 
 particularly important restriction, such 
 as the prohibition of ownership and oc- 
 cupancy by non-Caucasians, may well be 
 designated as a condition subsequent; 
 thus 
 
 "It shall be an express condition in said 
 deed that the premises herein described shall 
 not be conveyed or leased by the grantee or 
 any of the successors in title of the grantee, 
 to any person who is not a Caucasian; 
 that neither the premises herein described 
 nor any of the improvements thereon shall 
 be occupied by anyone who is not a Cau- 
 casian; and that in the event that the 
 premises herein described shall be conveyed 
 or leased by the grantee or any of the suc- 
 cessors in title of the grantee to any person 
 who is not a Caucasian, or in the event that 
 said premises or any improvements erected 
 thereon shall at any time be occupied by a 
 person who is not a Caucasian, the property 
 herein described shall revert to the grantor 
 in said deed free and clear from any claim of 
 the grantee or the successors in title of the 
 grantee, such reversion, however, to be sub- 
 ject to any then existing encumbrance." 25 
 
 In addition to the critical attitude of 
 the courts, an economic question may 
 be raised with respect to the use of con- 
 ditions. One of the subdivider's chief 
 
 25 Devonshire Manor, Krenn and Dato, Chicago, 111. 
 
 aims is to dispose of his interest in the 
 property as quickly as possible. He is 
 usually very definite in his unwillingness 
 to resell properties for his original pur- 
 chasers. Therefore, it seems unlikely 
 except in very urgent cases that he 
 would be anxious to enforce a restriction 
 which would bring the property back 
 into his hands for resale. Furthermore, 
 when the enforcing agent is an owners' 
 association, problems may easily arise. 
 For instance, how could such an organi- 
 zation be constituted legally to enable it 
 to receive title to a piece of property 
 as a result of the operation of a reverter 
 clause, for "reversion" implies return to 
 the original grantor. In short, the great- 
 est care should be taken when attempt- 
 ing to enforce restrictive agreements by 
 threat of reversion of title. 
 
 Before leaving the matter of enforce- 
 ment notice should be given to a clause 
 frequently found which states that fail- 
 ure to take action against violation of a 
 covenant shall not be considered a waiver 
 of the right to do so thereafter. This 
 is an attempt to escape a charge of 
 laches. The courts, however, seem in- 
 clined to regard an omission of enforce- 
 ment as acquiescence in the violation 
 and therefore to refuse to grant relief in 
 the future. 26 On the other hand, cases 
 may be found where courts have handed 
 down opposite rulings. 27 
 
 Maintenance Charges 
 
 The purpose of maintenance charges 
 is to secure funds for the general upkeep 
 and to improve the appearance of the 
 subdivision. They are an important ad- 
 junct to the developer's plan. Such 
 funds are particularly necessary for 
 areas which are outside the corporate 
 
 26 Ocean City Assn. v. Chalfant, 65 N.J. F.q. 156, 55 
 Atl. 801 (1903). 
 
 27 Bacon v. Sandberg, 179 Mass. 396, 60 N. E. 936 
 (1901); also Zippv. Barker, 55 N.Y. Supp. 246 (1898). 
 
66 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 limits of a municipality and which there- 
 fore must maintain all their own im- 
 provements. The lists of items for which 
 these funds are to be expended differ 
 widely but the clause reproduced here 
 will give an idea of the nature of the 
 expenditures covered. 
 
 "Whitcomb and Keller agree to pay their 
 proper proportion into said fund for all the 
 unsold lots and to apply the total fund aris- 
 ing from said charge, as far as the same may 
 be sufficient, toward the payment of the so- 
 called Maintenance Expenses incurred for 
 the following purposes: 
 
 For lighting, improving and maintaining 
 the streets and the parks and playgrounds, 
 if any, maintained for the general use of 
 owners and occupants of land included in 
 said tract, including all grass and planted 
 areas within the boundaries of such streets, 
 parks and playgrounds; 
 
 For caring for vacant and unimproved 
 land, on which said Maintenance Charge is 
 being paid, and removing the grass and 
 weeds therefrom; 
 
 For planting and caring for trees; For ex- 
 penses incident to the examination and ap- 
 proval of plans as herein provided, and to the 
 enforcement of the restrictions, conditions, 
 covenants, easements, charges and agree- 
 ments herein contained; 
 
 For taxes and assessments, if any, that 
 may be levied by any public authority upon 
 the parks and playgrounds now or hereafter 
 opened, laid out or established for the gen- 
 eral use of the owners of lots included in said 
 tract; and 
 
 For doing any and all other things that, 
 in the opinion of Whitcomb and Keller may 
 be of general benefit to the property own- 
 ers." 28 
 
 The amounts and methods of assessing 
 these charges also differ greatly. With 
 respect to amounts, no generalization 
 can be made. Such figures as one mill, 
 two mills, three mills per square foot are 
 found among the restrictions examined. 
 In each case this amount is stated as the 
 maximum which may be assessed during 
 any" one year. The following quotation 
 
 28 Sunnymede, Whitcomb and Keller, South Bend, 
 Ind. 
 
 Table VII. Restrictive Clauses Pro- 
 viding for Maintenance Charges 
 
 Name of Subdivision 
 
 and Subdivider 
 
 and Location 
 
 Amount 
 
 By Whom 
 Administered 
 
 
 20c per ioo 
 
 sq. ft. (min- 
 imum) 
 
 
 Baker Estates 
 Altoona, Pa. 
 
 Later a commit- 
 tee of 3 owners 
 
 J. R. Robertson & Co. 
 Chicago, 111. 
 
 
 
 Arlington Park 
 
 Laudermilk Realty Co. 
 Chicago, 111. 
 
 
 
 
 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 
 Anchorage Heights 
 
 Anchorage, Ky. 
 
 Pro-rated 
 
 
 Ashburton 
 
 G. R. Morris Org'n. 
 Baltimore, Md. 
 
 
 
 
 Pro-rated 
 
 
 New Britain, Conn. 
 
 
 Avon Center Estates 
 
 H. F. Bowse 
 Cleveland, Ohio 
 
 
 
 Aspinwall Hill Sub'n 
 
 Brookline, Mass. 
 
 
 
 Belmont Country Club 
 
 A. T. Mcintosh Co. 
 Chicago, III. 
 
 
 
 
 Pro-rated 
 
 
 Ann Arbor, Mich. 
 
 owners 
 
 
 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 
 
 
 Beacon Falls, Conn. 
 
 
 Bonelli-Adams Co 
 
 Boston, Mass. 
 
 
 
 Bonnycastle Terrace 
 
 Louisville, Ky. 
 
 Equal on 
 all lots 
 
 
 Thorpe Bros. 
 Minneapolis, Minn. 
 
 i mill per 
 sq. ft. 
 
 Owners' Assn. 
 
 Brookline Hills Sub'n 
 
 Brookline, Mass. 
 
 
 
 Cuvahoga View Heights 
 
 Hoiles & Hedden Co. 
 Cuyahoga Falls, Ohio 
 
 
 
 Colony Hills 
 
 ioc per ioo 
 sq. ft. per yr. 
 
 
 Springfield, Mass. 
 
 
 Cityco Realty Co 
 
 Baltimore, Md. 
 
 
 
 Cravath Sub'n 
 
 Locust Valley, L. I. 
 
 
 
 Cushing's Island 
 
 Casco Bay, Me. 
 
 
 
 
 
 
 Hogle & Mawdsley 
 Carmel, Cal. 
 
 
 Devonshire Manor Annex. . . 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 67 
 
 Table VII. Restrictive Clauses Pro- 
 viding for Maintenance Charges 
 {Continued) 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 Amount 
 
 By Whom 
 Administered 
 
 
 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 
 
 
 S. S. Berry 
 Chicago, 111. 
 
 
 Estudillo Estates 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 
 
 
 
 Chas. P. Gray Co. 
 Chicago, 111. 
 
 
 Fairway Section 
 
 Thorpe Brothers 
 Minneapolis, Minn. 
 
 1 mill per 
 sq. ft. 
 
 Owners' Assn. 
 
 Forest Hills Gardens 
 
 Sage Foundation Homes 
 Long Island 
 
 2 mills per 
 sq. ft. 
 
 Seller 
 
 Fernside 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 1 mill per 
 sq. ft. min. 
 
 Owners' Assn. 
 
 
 
 
 Providence, R. I. 
 
 
 
 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 Great Neck Hills 
 
 $2 per lot 
 to 1926 
 
 
 Great Neck, R. I. 
 
 
 Glen Oaks 
 
 Guy M. Rush 
 Los Angeles, Cal. 
 
 3 mills per 
 sq. ft. 
 maximum 
 
 Homes Assn. 
 
 Guilford 
 
 Baltimore County, Md. 
 
 20c per 100 
 sq. ft. 
 maximum 
 
 
 Gwin Unit 
 
 Fred T. Wood Co. 
 Oakland, Cal. 
 
 
 
 Harroun Park Sub'n 
 
 Currier Inv. Co. 
 Detroit, Mich. 
 
 $2 per lot 
 per yr. 
 
 
 Highland Park Add'n 
 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 
 Howard-Lincoln, etc., Add'n. 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 
 
 
 
 Geo. R. Morris Org'n. 
 Baltimore, Md. 
 
 
 
 
 
 Bills Realty Co. 
 Chicago, 111. 
 
 
 Kenilworth Hghlds. Sub'n.. . 
 Wittbold Realty Co. 
 Chicago, 111. 
 
 
 
 A. H. Kraus Co 
 
 
 
 Chicago, 111. 
 
 
 
 
 
 Perry Park, Colo. 
 
 owners 
 
 
 
 
 B. H. Laudermilk Co. 
 Chicago, 111. 
 
 
 is fairly typical of the phraseology used 
 in these restrictions: 
 
 "All the land shown on said map entitled 
 St. Francis Wood Extension No. 2, whether 
 owned by Westgate Park Company or other- 
 wise (except streets, parks, now or hereafter 
 opened, laid out, or established, open spaces 
 maintained for the general use of owners of 
 property shown on said map, and land taken 
 or sold for public improvement or uses) shall 
 be subject to an annual charge, or assess- 
 ment, of not to exceed five mills ($.005) per 
 square foot of area. St. Francis Homes 
 Association is hereby expressly delegated 
 by Westgate Park Company with the sole 
 authority to fix the rate per square foot of 
 such charge or assessment (which shall in no 
 event exceed five mills ($.005) and to expend 
 for the purposes hereinafter specified the 
 money paid in on such charges or assess- 
 ments. The right to collect and enforce the 
 collection of such charges or assessments is 
 hereby retained by Westgate Park Company 
 until said right is transferred by it to St. 
 Francis Homes Association." 29 
 
 Lack of uniformity also exists with 
 reference to the methods of assessment. 
 Two methods predominate: the one, 
 already referred to, of a definite charge 
 per unit of measurement and the other 
 a flat charge per lot per year. Further- 
 more, the units of measurement vary, 
 including frontage as a base or total 
 number of square feet. Using either of 
 these measurements as a base, this 
 method of calculating the maintenance 
 charge is superior to the flat rate. It 
 distributes the burden more nearly in 
 proportion to the benefits derived. A 
 third method of figuring the main- 
 tenance charge may be mentioned. This 
 method uses the valuation fixed by the 
 tax assessors as the base. This procedure 
 has particular value when the sub- 
 division is not within the corporate 
 limits of a municipality and is therefore 
 subject only to state and county taxes. 
 As a safeguard it is usually best in such 
 
 29 St. Francis Wood, Mason-McDuffie Co., San 
 Francisco. Cal. 
 
68 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 cases to insert a clause in the restriction 
 to the effect that the maintenance charge 
 shall not exceed the tax levied in some 
 specified municipality in the state. 
 
 The administration of these funds is 
 another point to be considered. In a 
 good many cases, such as the one quoted 
 above, the subdivider reserves the power 
 of collecting and expending the funds. 
 On the other hand, numerous examples 
 of the exercise of such powers by the 
 owners' association are found. In fact, 
 this duty is frequently one of the first 
 responsibilities placed upon such organi- 
 zations. When owners' associations have 
 only a limited number of functions to 
 perform, the administration of the main- 
 tenance charges is usually one of them. 
 
 From the legal point of view, these 
 charges seem to rest on sound precedent. 
 They are legally collectible and may be a 
 legitimate lien upon the land. An 
 opinion of a Missouri court illustrates 
 the general attitude on this point. 
 
 "From what has been said it must neces- 
 sarily follow that the action of the Board of 
 Clifton Heights in levying an assessment of 
 five dollars on part of lot thirty-eight and 
 three dollars on part of lot thirty-seven of 
 which defendant was at that time the owner, 
 under and by virtue of their powers and 
 authority contained in said deed from Ken- 
 nedy and Plunkett to Fry, Tebbetts and 
 others, was a legal and valid assessment, and 
 the judgment rendered in pursuance thereof, 
 declaring the same to be a first lien upon the 
 property owned by defendant, Annex Realty 
 Company is a legal and valid judgment and 
 should be affirmed." 30 
 
 The importance of considering main- 
 tenance charges has not been sufficiently 
 emphasized either in subdivision prac- 
 tice or in the literature on subdivision 
 activities. A recent tendency lias been 
 noticed in the field of city planning to 
 lay greaterjemphasis on the problem of 
 
 Table VII. Restrictive Clauses Pro- 
 viding for Maintenance Charges 
 {Continued) 
 
 30 Stevens v. Annex Realty Company, 173 Mo. 511 
 (1900). 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 Amount 
 
 By Whom 
 Administered 
 
 Lake Shore Highlands 
 
 Oakland, Cal. 
 
 
 
 Locust Hills 
 
 
 
 Blair Home Co. 
 Altoona, Pa. 
 
 
 Licton Springs Pk. 
 Seattle, Wash. 
 
 
 50c per front ft. 
 per yr. minimum 
 
 Maple Hill 
 
 F. B. McKibbin Co. 
 Lansing, Mich. 
 
 
 
 Manito Park 
 
 
 
 Spokane, Wash. 
 
 
 Justin Matthews Co 
 
 Little Rock, Ark. 
 
 
 
 Milwaukee-Howard Sub'n ... 
 Krenn & Dato, Inc. 
 Chicago, 111. 
 
 
 
 Mountain Lake 
 
 Lake Wales, Fla. 
 
 Pro- rated 
 
 
 Morningside Heights 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 
 Newton Blvd. Sub'n 
 
 Newton, Mass. 
 
 
 
 Oak Hill Village 
 
 
 
 Arnold Hartman 
 Boston, Mass. 
 
 
 
 
 
 F. W. N orris Co. 
 Boston, Mass. 
 
 
 Pacific Southwest Bank 
 
 Los Angeles, Cal. 
 
 
 
 Palos Verdes Estates 
 
 Los Angeles, Cal. 
 
 Set by 
 Homes 
 Ass'n 
 
 Homes Ass'n 
 
 
 
 
 Jemison & Co. 
 Birmingham, Ala. 
 
 
 Roland Park 
 
 25c per 
 front ft. per 
 year 
 
 
 Baltimore County, Md. 
 
 
 St. Francis Wood 
 
 Mason-McDuffie Co. 
 San Francisco, Cal. 
 
 5 mills per 
 sq. ft. max. 
 
 Seller until as- 
 signed to Homes 
 Ass'n 
 
 Sackett Sub'n 
 
 Louisville, Ky. 
 
 
 
 
 
 
 New York City 
 
 
 Sudbrook 
 
 Baltimore County, Md. 
 
 
 
 
 
 
 Van Sweringen Co. 
 Cleveland, Ohio 
 
 
 Calgary, Alberta 
 
 
 
 S. Bloomfield Highlands 
 
 Michigan Inv. Co. 
 Detroit, Mich. 
 
 75^c per 100 
 sq. ft. to 
 1935 
 
 
 Sunrise Addition 
 
 R. C. Erskine & Co. 
 Seattle, Wash. 
 
 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 69 
 
 Table VII. Restrictive Clauses Pro- 
 viding for Maintenance Charges 
 {Continued) 
 
 Name of Subdivision 
 and Subdivider 
 and Location 
 
 Amount 
 
 By Whom 
 Administered 
 
 Sunnymede 
 
 Whitcomb & Keller 
 South Bend, Ind. 
 
 15c per 
 front ft. per 
 year 
 
 Seller 
 
 Sunnyside 
 
 City Housing Corp. 
 New York City 
 
 Payable un- 
 til 1-1-1966 
 
 
 Tavern Acres 
 
 No. Andover, Mass. 
 
 
 
 Tilden Realty Corp 
 
 Utica, N. Y. 
 
 
 
 Sunset Hill . . 
 
 Provisions 
 in individual 
 deeds or 
 contracts 
 
 
 J. C. Nichols Inv. Co. 
 Kansas City, Mo. 
 
 
 Uplands 
 
 Victoria, B. C. 
 
 50c per 
 front ft. 
 minimum 
 
 
 Uplands 
 
 Wellesley, Mass. 
 
 
 
 
 
 
 Bowie & Trent 
 San Benito, Tex. 
 
 
 Vanderlip Sub'n 
 
 Scarborough, N. Y. 
 
 Pro-rated 
 
 
 Vinsetta Park Sub'n 
 
 Vinsetta Land Co. 
 Detroit, Mich. 
 
 1 mill per 
 sq. ft. for 
 
 5 yra- 
 
 Seller 
 
 Los Angeles, Cal. 
 
 
 
 Woodmar Realty Co. 
 Hammond, Ind. 
 
 
 
 Westchester 
 
 William Zelosky 
 Chicago, 111. 
 
 
 
 Westwood Sub'n 
 
 Van Alstine Land Co. 
 Detroit, Mich. 
 
 $1 per lot 
 per yr. to 
 • 925 
 
 Seller 
 
 financing city plans. Many instances 
 could be cited of elaborate city plans 
 which have been drawn up during a 
 flurry of planning enthusiasm but which 
 are still on paper or, worse still, standing 
 in a half-completed condition as a 
 mockery to the planning idea. 
 
 A similar situation exists with regard 
 to some subdivisions. Almost any city 
 can afford at least one example of a sub- 
 division with crumbling entrance gates 
 or parkways grown up in weeds because 
 inadequate provision was made for their 
 development or upkeep. Such things 
 are poor business from the subdivider's 
 
 point of view. They represent promises 
 unkept and cause unfavorable reactions 
 on the part of prospective purchasers of 
 the last lots from which the developer 
 expects to reap his profit. 
 
 Recent awakening to the importance 
 of the financial aspect of city planning 
 augurs well for the future. It is to be 
 hoped that a similar tendency will be 
 found in the field of subdivision develop- 
 ments. Purchasers of subdivision prop- 
 erty should seek assurance that the 
 plans proposed for the development will 
 be carried out, at least in so far as the 
 financial means for their execution are 
 concerned. 
 
 Miscellaneous Restrictions 
 
 Two items remain to be discussed 
 under this heading: the organization and 
 powers of owners' associations and the 
 matter of reference in deeds to zoning 
 regulations. 
 
 The formation of owners' associations 
 to look after community affairs seems to 
 be a comparatively new development, at 
 least if the sample analyzed here may be 
 considered representative. Of the older 
 subdivisions referred to as the Olmsted 
 group only one carried a provision for the 
 formation of an association of lot owners 
 and this one is a recent development, 
 originating in 1922. 31 But among the 
 subdivisions referred to as the newer 
 group a number of instances of this type 
 of organization are found. 
 
 In some instances the owners' asso- 
 ciation (or homes association, improve- 
 ment association, or community associa- 
 tion, as it is variously called) is not 
 formed until after a certain percentage 
 of the lots in the subdivision has been 
 sold. The theory behind this practice is 
 that control by a single legal entity (the 
 subdivider) is simpler and more efficient 
 
 31 Barton Hills, Ann Arbor, Mich. 
 
7o 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 during the early stages of development. 
 The argument is advanced to the effect 
 that it is difficult to get a community 
 organization to function when there are 
 only a few scattered lot owners. On the 
 other side is the argument that the sub- 
 divider's interest weakens as his finan- 
 cial burdens become less and he is 
 tempted to let up on restrictions in 
 order to dispose of the balance of his 
 lots. In other words, the interest of the 
 home owners' association is permanent 
 as opposed to the temporary interest of 
 the developer. 
 
 Examining further the restrictions 
 providing for the organization of a homes 
 association after a certain portion of the 
 lots is sold, it is found that the initiative 
 for such organization originates some- 
 times with the subdivider and sometimes 
 with the lot owners. Quotations from 
 two deeds will illustrate this point: 
 
 "When eighty per cent. (80%) of the lots 
 in said section have been sold, the Vendor, 
 at its option, may organize an Improvement 
 Association composed entirely of lot owners 
 in said section and shall appoint a committee 
 of four (4) owners in said section — one for 
 a term of one (1) year, one for a term of two 
 (2) years and one for a term of three (3) 
 years, who shall be known as active mem- 
 bers; and a fourth member who shall be 
 known as an inactive member, who will 
 automatically become an active member 
 whenever a vacancy, from any cause what- 
 soever, shall occur among its three active 
 members. When such fourth member be- 
 comes an active member, then the majority 
 of the owners who are members of said Im- 
 provement Association may appoint a lot 
 owner as the inactive member to fill the 
 vacancy of such fourth member; but in the 
 event of the failure of such member of the 
 Improvement Association to make such ap- 
 pointment within thirty (30) days after such 
 vacancy occurs, then the remaining three 
 members of such committee shall have the 
 power to appoint an owner of a lot in said 
 section to fill such vacancy. All appoint- 
 ments shall be made in writing and a record 
 kept with said Association. The majority 
 of said committee shall have the same power 
 
 as if they had been named by the Vendor 
 herein. This committee shall have the right 
 of approval or disapproval as in this para- 
 graph provided, and when so organized and 
 operative, the Vendor herein shall be re- 
 lieved and released from any and all lia- 
 bility in connection with such duties." 32 
 
 "Should two-thirds of the lot owners of the 
 Maple Hill Subdivision determine upon the 
 formation of a Community Association to 
 administer all affairs of the owners and 
 occupants of said subdivision, then the owner 
 of each lot shall become a member and take 
 out one membership for each lot and have 
 voting power in accordance therewith." 33 
 
 Both of these methods, however, seem 
 inadequate, not only with respect to 
 their origination but also with respect 
 to their form of organization when 
 similar provisions in the Palos Verdes 
 agreement are examined. 
 
 It is possible here only to summarize 
 briefly the Palos Verdes method be- 
 cause of its great length and detail. The 
 Palos Verdes Homes Association 34 is 
 an incorporated "non-stock, non-profit 
 body under the laws of California." 
 Its affairs are governed by a board of 
 directors and each lot purchaser auto- 
 matically becomes a member upon the 
 receipt of his deed. The Association is 
 charged with the enforcement of the 
 restrictive covenants; together with the 
 Art Jury it approves building plans as 
 well as subdivision plans; it administers 
 the maintenance charges; and is re- 
 sponsible for the general improvement 
 and upkeep of the subdivision. 
 
 A somewhat different situation is pres- 
 ent in the Shaker Heights development 
 near Cleveland, Ohio. The area is an in- 
 corporated village, and, while the sub- 
 divider still retains many of his powers, 
 the lot owners determine manv of their 
 
 32 Brown Section, Thorpe Bros., Minneapolis, Minn. 
 
 33 Maple Hill, F. B. McKibbin, Lansing, Mich. 
 
 34 See Protective Restrictions Palos Verdes Estates, 
 Los Angeles County, California. Tract 7333 and 
 Tract 8652, Montemalaga. 
 
ADMINISTRATIVE AND RACIAL CLAUSES 
 
 7i 
 
 community affairs through the political 
 organization. 
 
 Associations of this type seem more 
 nearly adequate to safeguard the inter- 
 ests of the lot owners. Their success is de- 
 pendent, however, upon the development 
 of an active community spirit which is 
 difficult both to develop and to maintain. 
 Furthermore, they require considerable 
 activity on the part of the lot owners, 
 who do not as a rule wish to be bothered 
 with details about their residential prop- 
 erty. It would seem logical, therefore, 
 that the changes to be expected in the 
 mechanics of organization of the asso- 
 ciation would be in the direction of 
 greater simplicity. At any rate changes 
 are sure to take place because home 
 owners' associations are a relatively new 
 creation. 
 
 A final consideration is the reference 
 in deeds to zoning ordinances which ex- 
 ist at the time of development or which 
 may be inaugurated at a future date. 
 The purpose of such reference in the 
 deed is largely to protect the developer 
 against possible contingencies which 
 may arise, for interactions do take place 
 between deed restrictions and zoning 
 regulations, as will be pointed out later. 
 The usual form of such reference to zon- 
 
 ing regulations is merely a statement to 
 the effect that the lot purchaser takes 
 title "subject to the following covenants, 
 conditions and restrictions, including 
 zoning and building ordinances." 
 
 In concluding the discussion in Chap- 
 ters IV and V it should be pointed out 
 that the analysis has not been exhaustive. 
 A number of other restrictions in addi- 
 tion to those treated here are contained 
 in these deeds. The purpose has been to 
 confine attention to those restrictive 
 clauses which exercise the greatest con- 
 trol upon land development. 
 
 Furthermore, it is not possible to de- 
 duce any very satisfactory conclusions 
 from this study as to which of these 
 restrictions are most helpful in sales 
 promotion or which of them are likely 
 to arouse "sales resistance." Generali- 
 zations on such matters are extremely 
 difficult because conditions in local mar- 
 kets vary so greatly. In some localities 
 subdividers literally sell the restrictions 
 themselves. The sales value of partic- 
 ular restrictions is therefore better se- 
 cured from subdividers who are familiar 
 with local real estate conditions, as influ- 
 enced by the psychology of the individ- 
 ual buyers and by subdivision practice in 
 that region. 
 
CHAPTER VI 
 
 A Valuation of Deed Restrictions as a Control Device 
 
 AS stated at the outset, deed re- 
 strictions are important because 
 they define and control the rela- 
 tionships between the subdivider and 
 the lot purchaser. These relationships 
 are expressed in a transaction involving 
 a piece of land, as a result of which both 
 parties expect to receive certain desired 
 returns. It is well, therefore, first to 
 consider briefly what the subdivider and 
 the lot purchaser are seeking from this 
 transaction. Evaluation of restrictive 
 agreements can then be made on the 
 basis of whether or not they aid or hin- 
 der the securing of these ends. 
 
 For the purpose of arriving at the 
 aims of the subdivider and the lot pur- 
 chaser, two assumptions are made. It is 
 assumed here that the subdivider is 
 seeking, not merely to dispose of lots, 
 but to lay the foundation for a com- 
 munity of homes, what has been called 
 here a "subdivision development." For 
 the lot purchaser it is assumed that he is 
 buying a lot for use as a home site, and 
 not for speculative purposes. 
 
 In the light of these assumptions 
 three aims of the subdivider may be dis- 
 tinguished. He is seeking (i) the highest 
 possible prices for his lots consistent 
 with (2) quick turnover of the subdi- 
 vision property, and (3) a complete and 
 economical development. The last item 
 includes substantial and attractive struc- 
 tures, protection against inharmonious 
 uses both within and without the area, 
 and economies of improvement. 
 
 To say that the subdivider is seeking 
 the highest possible price for his lots 
 seems to beg the question. Yet there are 
 certain rather definite limitations on 
 the prices he may or should ask. His 
 
 main consideration is not to set a price 
 so high that, if reselling begins, it will 
 undermine the balance of his sales. If 
 the subdivider seeks both high prices 
 and quick turnover, this seems at first 
 thought equivalent to riding two horses 
 in opposite directions at the same time, 
 for higher prices tend to curtail effective 
 demand. But the subdivider may at- 
 tempt to avoid this result in two dif- 
 ferent ways. After examining real estate 
 market conditions he may figure that 
 business is going to improve and he will 
 thus be able to make quick sales while 
 also securing relatively high prices. He 
 has also another alternative. He may 
 create a commodity which will have 
 such a strong appeal to a specific income 
 group that he will be able to dispose of 
 his lots quickly at increased prices. In 
 other words, although the increased 
 price may cut down the general effective 
 demand, the specialized character of the 
 commodity may increase the demand of 
 a particular income group and thus make 
 it possible to secure high prices and quick 
 turnover at the same time. The dif- 
 ficulty of striking the proper balance 
 to secure both these objectives is ob- 
 vious. 
 
 The lot purchaser would also like to 
 profit from an increase in land values, 
 although this may be a secondary con- 
 sideration with him. Under the assump- 
 tions stated, he is primarily concerned 
 with securing the relative permanency 
 of his investment, and its protection 
 against the deteriorating influence of 
 undesirable neighbors or inharmonious 
 uses. Finally, he is seeking amenities 
 for his home site, in the shape of at- 
 tractive surroundings. 
 
EVALUATION OF RESTRICTIONS 
 
 73 
 
 How economically do restrictions in 
 deeds secure these ends? The statement 
 is often made that deed restrictions in- 
 crease the value of the restricted prop- 
 erty. But is this unqualifiedly true? It 
 does seem to be true, if the restrictions 
 are carefully drawn, for the early years 
 during which the restrictions are in 
 operation; the assurance of protection 
 against inharmonious uses is a market- 
 able quality, having a distinct value. 
 Or this increased value of restricted 
 property may arise from the scarcity of 
 properties of this class. But whether the 
 added value is the result of increased 
 utility arising out of greater desirability 
 or whether it is a scarcity phenomenon 
 makes little difference. The subdivider 
 is concerned with the increased value as 
 such and is satisfied that deed restric- 
 tions contribute to that value. 
 
 The case of the lot purchaser is dif- 
 ferent. He hopes for increased value in 
 the future, when the property shifts to 
 a higher use. For him, then, deed re- 
 strictions may be an obstacle, par- 
 ticularly if they are drawn for too long 
 a period. In order to secure the in- 
 creased value desired by the lot pur- 
 chaser it is necessary that the restriction 
 be drawn in such a way as to strike the 
 proper balance between a maximum of 
 amenities and a minimum of injury 
 through precluded uses in the future. 
 Because of the great difficulties in- 
 volved in establishing their proper dura- 
 tion, deed restrictions may work against 
 the securing of an increased value from 
 . change of use. Furthermore, restrictive 
 clauses tend to reduce the speculative 
 element in subdivision property because 
 they establish specified uses of the land 
 for definite periods of time and thus 
 preclude immediate turnover for another 
 use. Finally, a restriction which has 
 been broken may hamper sale of the 
 property. The clause remains on record 
 
 to confront the prospective purchaser 
 even though it may long since have 
 become a dead letter. It thus impairs 
 the marketability of the property. In 
 short, deed restrictions are more im- 
 portant to the lot purchaser from the 
 point of view of stabilizing both the use 
 and value of his lot than of enhancing 
 its value. This, after all, is the important 
 consideration when the assumption is 
 made, as here, that he purchases for use 
 and not for speculation. 
 
 The subdivider's second aim is rapid 
 turnover. Restrictive covenants may 
 both help and hinder him here. In the 
 first place, comprehensive restrictions 
 applied to a subdivision may tend to 
 reduce the number of purchasers who 
 are available for that property. The ap- 
 peal is likely to be to a smaller group. 
 However, other important factors enter 
 into the consideration. The condition 
 of the local market is of prime im- 
 portance. If there is a dearth of sub- 
 division property of the class which is 
 being created under restrictions, then 
 the limiting effect of these agreements 
 might not be felt. In this case the re- 
 strictive clauses may promote more 
 rapid turnover. 
 
 Paralleling this aim of the subdivider 
 is the desire of the lot owner for protec- 
 tion of his investment. He seeks pro- 
 tection first against undesirable neigh- 
 bors and here he must rely upon deed 
 restrictions alone, for only by contrac- 
 tual agreements of this kind can such 
 protection be secured. Secondly, he 
 seeks protection against inharmonious 
 uses and deed restrictions are only 
 partially successful for this purpose. 
 The potential inclusiveness of restrictive 
 clauses can give him greater protection 
 within the subdivision than he can se- 
 cure from any other means of control. 
 But deed restrictions control only a 
 limited area and inharmonious uses en- 
 
74 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 croaching to the very boundaries of the 
 subdivision may cast their shadows 
 within its borders. For securing perma- 
 nency of in vestment, restrictions properly 
 drawn may be said to be adequate. The 
 lot owner is usually concerned only with 
 a period corresponding to the span of his 
 own life and, as stated previously, it is 
 possible for restrictive clauses to secure 
 protection for at least a generation. This 
 point should, of course, be considered in 
 relation to the problem of the duration 
 period and its connection with the 
 growth of the community as a whole. 
 
 Protection of investment also involves 
 problems of enforcement. One of the 
 weaknesses of restrictions has been the 
 fact that their enforcement has de- 
 pended upon private initiative. If 
 individuals were lax in assuming re- 
 sponsibility, enforcement suffered. The 
 weakness of the subdivider as the en- 
 forcing agent was mentioned previously 
 as another illustration of the inadequacy 
 of deed restrictions to protect the in- 
 vestment. The increasing use of legally 
 constituted home owners' associations 
 promises to reduce these weaknesses 
 supposed to be inherent in restrictive 
 clauses. 
 
 Finally, in connection with the in- 
 vestment aspect is the consideration of 
 the effect of deed restrictions on borrow- 
 ing. The presence of conditions subse- 
 quent in deeds is frequently an obstacle 
 to the owner who wishes to borrow with 
 the lot as security. Some insurance com- 
 panies are especially particular on this 
 point and often will not lend money 
 upon property so restricted because 
 they regard the title as too insecure. 
 This is especially true in cases where the 
 insurance company is in a distant city 
 and does not know the local situation 
 with regard to the property to be mort- 
 gaged. Restrictive covenants, on the 
 other hand, may or may not be obstacles 
 
 to borrowing. Banks and insurance 
 companies are beginning to take precau- 
 tions against lending on property which 
 does not comply strictly with the regu- 
 lations set forth in its deed, but when 
 these covenants are carefully observed, 
 they seem to be no hindrance to bor- 
 rowing. 
 
 With respect to the third aims of both 
 the subdivider and the lot purchaser — 
 complete and economical development 
 and amenities, respectively — there can 
 be little doubt as to the effectiveness of 
 deed restrictions in securing these ends. 
 From the point of view of the subdivider 
 careful observance of well-framed agree- 
 ments will result in good development in 
 the early stages which may help in the 
 rapid disposal of the balance of the lots, 
 wherein the profit for the developer lies. 
 It is generally said that the returns from 
 the sale of the last fourth of the lots 
 constitute the profits to the subdivider. 
 The returns from the sale of the first 
 three-fourths are required to meet the 
 expenses of the development process. 
 From the point of view of the lot pur- 
 chaser the adaptability of deed restric- 
 tions to fit particular situations affords 
 opportunity for securing the maximum 
 amenities which a given site is capable 
 of producing. 
 
 Deed Restrictions and Zoning Compared 
 
 No discussion of deed restrictions is 
 complete without at least some com- 
 parison of them with zoning regulations. 
 It is not proposed to go into this ques- 
 tion exhaustively here but only to make 
 a few comparisons and indicate briefly 
 some of the relationships between the 
 two forms of control. 
 
 Such a comparison, however, intro- 
 duces a new element. Up to this point 
 deed restrictions have been evaluated 
 only in terms of their effect upon rela- 
 tionships between the subdivider and 
 
EVALUATION OF RESTRICTIONS 
 
 75 
 
 the lot purchaser. To compare them 
 with zoning it is necessary to take a 
 public point of view, instead of the point 
 of view of the limited group concerned 
 in the transaction. 
 
 The differences between the two 
 methods of control are more or less 
 familiar and may be gone over hastily. 
 The fact that zoning comprehends a 
 larger area than do restrictive cove- 
 nants is obvious, as are certain marked 
 advantages accruing from systematic 
 control as well as from this larger sphere 
 of influence. But the very fact that 
 zoning does deal with large areas creates 
 serious problems. The mapping of use 
 districts requires the utmost care on the 
 part of zoning authorities, particularly 
 where one district borders on another. 
 In such cases the drafters of the zone 
 plan should scrutinize each step lest 
 they lay themselves open to the charge 
 of arbitrary action. The recent decision 
 of the United States Supreme Court in 
 Nectow v. The City of Cambridge, Massa- 
 chusetts 1 emphasized this point again. 
 Zoning control, while recognized by the 
 courts to be legitimate and desirable, 
 must be applied with painstaking care 
 lest it be attacked as an unreasonable 
 exercise of the police power. Even 
 though it does deal with relatively large 
 areas, the details of its application are 
 very important, particularly in border 
 line cases. 
 
 A second point of comparison be- 
 tween zoning and restrictive covenants 
 in deeds is their relative flexibility. 
 Deed restrictions are said to be rigid 
 because they endure for a specified 
 length of time. It should be recalled in 
 this connection that in addition to the 
 provisions stating the duration of the 
 restriction the conveyances usually con- 
 tain two other clauses of equal impor- 
 
 1 No. 509, U. S. Sup. Ct.; 72 L. ed.; 48 Sup. Ct. Rep. 
 (Decided May 14, 1928). 
 
 tance: one providing for its extension if 
 desired by a certain proportion of the lot 
 owners and the other providing for 
 annullment of the restrictions on con- 
 sent of the lot owners. 2 In other words, 
 the same instrument which states the 
 life of the restrictive clauses provides 
 for their modification. The courts also 
 may supply flexibility to the operation 
 of deed restrictions by upholding or re- 
 fusing to uphold deed restrictions ac- 
 cording to conditions prevailing in the 
 district in question. In short, deed re- 
 strictions are not the ironclad rules they 
 are often accused of being. Zoning regu- 
 lations, on the other hand, are said to 
 be flexible as a result of certain dis- 
 cretionary powers resting in the board 
 of appeals or legislative powers residing 
 in the city council. But this very 
 amendibility of zoning ordinances may 
 constitute a weakness, particularly if it 
 is a loophole for political manipulation. 
 Moreover, there is the difficult problem 
 of amending a comprehensive scheme, 
 at the same time keeping its compre- 
 hensive character. 
 
 Flexibility may, however, be used in a 
 different sense, adaptability to individ- 
 ual situations. In that sense deed re- 
 strictions are unquestionably more flex- 
 ible than zoning. Instead of consisting 
 of blanket regulations applicable to all 
 properties alike as zoning must be, re- 
 strictive clauses may be adapted to dif- 
 ferent kinds of developments. Many 
 or few may be the restrictions included 
 in a deed according to the type of 
 development desired. Zoning, on the 
 other hand, supplies uniform rules for 
 each type of use district and because of 
 this limitation we may expect deed re- 
 strictions to continue as important in- 
 struments supplementing and refining 
 the zone classifications. 
 
 On the point of extensivity deed re- 
 
 2 See pp. 59-62. 
 
7 6 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 strictions have a distinct advantage 
 over zoning, for they may include 
 several types of regulations which are 
 at present barred to zoning. Racial 
 segregation and control of the aesthetics 
 of private developments are the two 
 most important items in this connection. 
 But more important than the dif- 
 ferences between deed restrictions and 
 zoning are the relationships between 
 them, for they are frequently found in 
 operation at the same time and on the 
 same piece of property. The statement 
 has been made that 
 
 "No private restrictions need ever refer 
 to zoning, nor need any zoning ordinance 
 ever refer to private restrictions. They are 
 entirely separate and apart. Courts will not 
 usually listen to the private restrictions in 
 trying a zoning case, nor to the zoning regu- 
 lations in trying a private restrictions case. 
 They go hand in hand with each other and 
 never conflict." 3 
 
 But experience and recent court de- 
 cisions do not support this statement. 
 Deed restrictions may affect zoning 
 regulations and vice versa. 
 
 The interrelation is evidenced first in 
 the fact that both zoning ordinances and 
 deed restrictions frequently mention the 
 other form of control. Typical of the 
 deed restrictions referring to zoning is 
 the clause stating that "the above 
 described property shall also be subject 
 to building and zoning ordinances now 
 in force or to be put in force." 4 Zoning 
 ordinances, on the other hand, often 
 state that they do not annul or abrogate 
 any covenant or agreement"' but some 
 are more specific in their pronounce- 
 ments, and emphasize the interrelation 
 between zoning and deed restrictions. 
 
 3 E. M. Bassett, Discussion, Planning Problems, 
 Papers and Discussions, National Conference on City 
 Planning, 1926, p. 71. 
 
 4 Arthur T. Mcintosh, Belmont Country Club 
 Addition, Chicago, 111. 
 
 6 Kramer v. Nelson, 189 Wis. 560 (1926); Welch v. 
 Swasey, 193 Mass. 364 at 371 (1907). 
 
 For example, the Zoning Commission 
 Act for the District of Columbia con- 
 tains the following: 
 
 "This act shall not abrogate or annul any 
 easements, covenants or other agreements 
 between parties: Provided, however, that 
 as to all future building construction or use 
 of premises where this Act or any orders or 
 regulations adopted under the authority 
 thereof impose a greater restriction upon the 
 use of buildings or premises or upon height 
 of buildings, or requires larger open spaces 
 than are imposed or required by existing 
 law, regulations, or permits, or by such 
 easements, covenant, or agreements, the 
 provision of this act and of the orders and 
 regulations made thereunder shall control." 6 
 
 But more important than the fact of 
 interrelation is the question of what 
 rules are being worked out with respect to 
 the dominance of one form or the other. 
 The litigated cases in which such rules 
 will be evolved are still too few to afford 
 any conclusive statements but certain 
 facts and tendencies are worthy of note. 
 
 Take the case of an area which has 
 been developed as a high-class residential 
 district as the result of carefully drawn 
 deed restrictions. It is not uncommon 
 for framers of zoning ordinances to 
 respect this development in their plans 
 whenever possible. In one case the 
 zoning authorities went even further. 
 On the theory that property owners who 
 have long complied with restrictions as 
 to residential use deserve protection the 
 drafters of the zone plan extended the 
 residential area to include land not 
 originally restricted to that use. A 
 permit to build an apartment on this 
 additional residential land was then re- 
 fused on the ground that it would con- 
 stitute a nuisance to those who had built 
 in accordance with the restrictions. 7 
 This is a case of a zoning ordinance 
 
 6 Quoted in Castleman v. .-fvignone, 56 D. C. App. 
 253, at 259, (1926). 
 
 7 Minkus v. Pond, 326 111. 467, 158 N. E. 121 (1927). 
 
EVALUATION OF RESTRICTIONS 
 
 77 
 
 supporting and extending the plan in- 
 augurated under deed restrictions. 
 
 Much more difficult are the problems 
 where the standards of the two control 
 devices are different. When the zoning 
 ordinance establishes higher standards 
 than the restrictive covenants, no par- 
 ticular problem is involved, for in that 
 case the ordinance is meeting no dif- 
 ferent situation than it does in applica- 
 tion to unrestricted properties. 8 
 
 But a very different situation exists 
 when the deed restrictions are more 
 severe than zoning regulations. Can a 
 zoning ordinance legalize a lower use of 
 the property than that permitted by the 
 restrictive agreement? Does the classi- 
 fication of property for business use by a 
 zoning ordinance require the owners 
 thereof so to use it? The consensus of 
 opinion in the few recent cases avail- 
 able on the question is negative. A 
 leading case is that of Ludgate v. Somer- 
 vi//e 9 . Both plaintiff and defendant 
 owned lots in a subdivision restricted to 
 residential use. Subsequently a zoning 
 ordinance was enacted which permitted 
 business of certain kinds in this district. 
 The defendant wanted to erect a filling 
 station on his property and the plaintiff 
 sought an injunction on the ground that 
 it violated the restriction. Three points 
 in the opinion reveal the attitude of the 
 court. The character of the district was 
 one consideration. The injunction was 
 granted mainly on the ground that the 
 character of the district had not so 
 changed as to make the operation of the 
 restrictive covenant inequitable. A 
 New York court in a case 10 decided a 
 year previously had refused an injunc- 
 tion against the erection of a business 
 building on a site restricted to resi- 
 dential use. Various grounds were 
 
 8 See n. 7. 
 
 9 121 Ore. 643, 256 Pac. 1043 (1927). 
 
 10 Forstmann v. Joray Holding Co., 244 N. Y. 22 
 (1926). 
 
 cited, including the fact that the re- 
 striction had but two more years to run 
 and that the plaintiff's gain would not 
 be at all commensurate with the defend- 
 ant's loss because the character of the 
 district had so changed that enforce- 
 ment of the restriction would not re- 
 store the original condition of the neigh- 
 borhood. This matter of the "character 
 of the district" is one of the focal points 
 about which disputes between zoning 
 ordinances and deed restrictions will 
 probably revolve. The courts examine 
 carefully the present circumstances in 
 the area in question and on this basis 
 decide whether a change in use is desir- 
 able. In general it may be said that the 
 courts are not likely to encourage more 
 rapid change from one use to another 
 than would take place in the normal 
 course of events. 
 
 A second consideration in the Lud- 
 gate v. Somerville opinion involved the 
 relation of police power regulations to 
 existing lawful agreements. The court 
 stated that "the police power is not to be 
 exercised to thwart or nullify lawful 
 agreements which in no way operate to 
 the detriment of the public welfare." 11 
 A similar statement is found in an Illi- 
 nois case. 
 
 "Notwithstanding said ordinance the 
 owners of said lots have the constitutional 
 right to make use of them in accordance 
 with such restrictions, so long as they do not 
 endanger or threaten the safety, health and 
 comfort or general welfare of the public." 12 
 
 The third point of significance in the 
 Oregon opinion is the statement to the 
 effect that restrictive agreements give 
 the property owner rights which cannot 
 be divested by such legislation as a 
 zoning ordinance. Here again an inter- 
 esting parallel is found, this time in a 
 Massachusetts opinion which states that 
 
 11 Supra n. 9 at 1045. 
 
 12 Gordon v. Caldwell, 235 111. App. 170 (1924). 
 
78 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 the zoning law cannot constitutionally 
 relieve land within the district covered 
 by it from lawful restrictions affecting 
 its use . . . 13 Although the evidence is 
 scanty, the conclusion may be reached 
 from the cases cited that the courts 
 consider restrictive covenants as creating 
 property rights which are enforceable 
 so long as they do not contravene the 
 public welfare and are not inequitable 
 in their operation. 
 
 The legal problems involved in the 
 relationship between zoning and deed 
 restrictions are only just coming to the 
 fore. 14 Zoning is still in the experimental 
 
 13 Vorenberz v. Bunnell. 257 Mass. 399, 153 N. E. 
 884, at 887 (1926). 
 
 14 See M. T. Van Hecke, "Zoning Ordinances and 
 Restrictions in Deeds", 37 Yale Law Journal 407-425 
 (February, 1928). This article, which is written from 
 the zoning point of view, is an able discussion of the 
 uses to which each of these control devices may be put, 
 the administrative methods of each and the effect of 
 one upon the other. 
 
 stage. Its relation to deed restrictions 
 and other older forms of control has still 
 to be worked out. The significance of 
 the relatively new device, the subdivi- 
 sion control ordinance, is not yet clear. 
 It may be that such ordinances will 
 afford the means of adjustment between 
 the various devices for regulating the 
 development of urban areas. 
 
 The fact remains, however, that deed 
 restrictions seem likely to continue for 
 some time to be an important force in 
 controlling the development of urban 
 land. They constitute a control device 
 which is available to all and which is 
 adaptable to a variety of situations. 
 But more important is the established 
 legal status of deed restrictions. The at- 
 titude of the courts is fairly clearly de- 
 fined in all jurisdictions, and subdividers 
 and purchasers are familiar with this 
 method of control and feel confident of 
 its permanency and soundness. 
 
TABLE OF DEEDS ANALYZED 
 
 Alleghany Furnace, Baker Estates, Altoona, 
 Pa. 
 
 Ardmore, J. R. Robertson & Co., Chicago, 
 111. 
 
 Arlington Park, Bert H. Laudermilk Realty 
 Ass'n, Chicago, 111. 
 
 Armour Hills, J. C. Nichols Inv. Co., Kansas 
 City, Mo. 
 
 Anchorage Heights, Anchorage, Ky. 
 
 Ashburton, G. R. Morris Org'n., Baltimore, 
 Md. 
 
 Andrews Subdivision, New Britain, Conn. 
 
 Avon Center Estates, H. F. Bowse, Cleve- 
 land, Ohio. 
 
 Aspinwall Hill Subdivision, Brookline, Mass. 
 
 Barton Hills, Ann Arbor, Mich. 
 
 Best Manor, Fred T. Wood Co., Oakland, 
 Cal. 
 
 Beacon Falls, Beacon Falls, Conn. 
 
 Belmont Country Club, A. T. Mcintosh 
 Co., Chicago, 111. 
 
 Bonelli-Adams Co., Boston, Mass. 
 
 Bonnycastle Terrace, Louisville, Ky. 
 
 Brown Section, Thorpe Bros., Minneapolis, 
 Minn. 
 
 Brookline Hills Subdivision, Brookline, 
 
 Cityco Mass. Realty Co., Baltimore, Md. 
 
 Cuyahoga View Heights, Hoiles & Hedden 
 Co., Cuyahoga Falls, Ohio. 
 
 Colony Hills, Springfield, Mass. 
 
 Cravath Subdivision, Locust Valley, L. I. 
 
 Cushings Island, Casco Bay, Me. 
 
 Deven Heights, Hogle and Mawdsley, Car- 
 mel, Cal. 
 
 Devonshire Manor Annex, Krenn & Dato, 
 Inc., Chicago, 111. 
 
 Devonshire Manor, Krenn & Dato, Inc., 
 Chicago, 111. 
 
 Diana Gardens, S. S. Berry, Chicago, 111. 
 
 Estudillo Estates, Fred T. Wood Co., Oak- 
 land, Cal. 
 
 Fairview Addition, Chas. P. Gray Co., Chi- 
 cago, 111. 
 
 Fairway Section, Thorpe Bros., Minneapo- 
 lis, Minn. 
 
 Forest Hills Gardens, Sage Foundation 
 Homes, L. I. 
 
 Fernside, Fred T. Wood Co., Oakland, Cal. 
 
 Freeman Subdivision, Providence, R. I. 
 
 Gatewood Gardens, R. C. Erskine & Co., 
 Seattle, Wash. 
 
 Great Neck Hills, Great Neck, L. I. 
 
 Glen Oaks, Guy M. Rush, Los Angeles, Cal. 
 
 Guilford, Baltimore County, Md. 
 
 Gwin Unit, Fred T. Wood Co., Oakland, Cal. 
 
 Harroun Park Subdivision, Currier Invest- 
 ment Co., Detroit, Mich. 
 
 Highland Park Addition, Krenn & Dato, 
 Inc., Chicago, 111. 
 
 Howard-Lincoln Subdivision, Krenn & Dato, 
 Inc., Chicago, 111. 
 
 Hunting Ridge, Geo. R. Morris Org'n., Bal- 
 timore, Md. 
 
 Indian Hill Estates, Bills Realty Co., Chi- 
 cago, 111. 
 
 Kenilworth Highlands Subdivision, Wittbold 
 Realty Co., Chicago, 111. 
 
 A. H. Kraus Co., Chicago, 111. 
 
 Lake Wauconda, Perry Park, Colo. 
 
 Laudermilk Villa, Bert H. Laudermilk Realty 
 Ass'n, Chicago, 111. 
 
 Lake Shore Highlands, Oakland, Cal. 
 
 Locust Hills, Blair Home Co., Altoona, Pa. 
 
 Licton Springs Park, Seattle, Wash. 
 
 Maple Hill, F. B. McKibbin Co., Lansing, 
 Mich. 
 
 Manito Park, Spokane, Wash. 
 
 Justin Matthews Co., Little Rock, Ark. 
 
 Milwaukee -Howard -Harlem Subdivision, 
 Krenn & Dato, Inc., Chicago, 111. 
 
 Mountain Lake, Lake Wales, Florida 
 
 Morningside Heights, R. C. Erskine & Co., 
 Seattle, Wash. 
 
 Newton Blvd. Subdivision, Newton, Mass. 
 
 Oak Hill Village, Arnold Hartman, Boston, 
 Mass. 
 
 Oyster Harbor, Inc., F. W. Norris Co., Bos- 
 ton, Mass. 
 
 Pacific Southwest Bank, Los Angeles, Cal. 
 
 Palos Verdes Estates, Los Angeles, Cal. 
 
 Redmont Park, Jemison & Co., Birmingham, 
 Ala. 
 
 Roland Park, Baltimore County, Md. 
 
 St. Francis Wood, Mason-McDuffie Co., San 
 Francisco, Cal. 
 
 Sackett Subdivision, Louisville, Ky. 
 
 Scarsdale Estates, New York City 
 
 Sudbrook, Baltimore County, Md. 
 
 Shaker Heights, Van Sweringen Co., Cleve- 
 land, Ohio 
 
 Sunalta, Calgary, Alberta 
 
 Sunrise Addition, R. C. Erskine & Co., Se- 
 attle, Wash. 
 
 Sunnymede, Whitcomb & Keller, South 
 Bend, Ind. 
 
 Sunnyside, City Housing Corp., New York 
 City 
 
 Tavern Acres, N. Andover, Mass. 
 
8o 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Tilden Realty Corp., Utica, N. Y. 
 
 S. Bloomfield Highlands, Michigan Inv. Co., 
 
 Detroit, Mich. 
 Sunset Hill, ]. C. Nichols Inv. Co., Kansas 
 
 City, Mo. 
 Uplands, Victoria, B. C. 
 Uplands, Wellesley, Mass. 
 Valencia Park, Bowie & Trent, San Benito, 
 
 Tex. 
 
 Vanderlip Subdivision, Scarborough, N. Y. 
 Vinsetta Park Subdivision, Vinsetta Land 
 
 Co., Detroit, Mich. 
 Wagner-Thoreson Co., Los Angeles, Cal. 
 Woodmar, Woodmar Realtv Co., Hammond, 
 
 Ind. 
 Westchester, William Zelosky, Chicago, 111. 
 Westwood Subdivision, Van Alstine Land 
 
 Co., Detroit, Mich. 
 
TABLE OF CASES CITED 
 
 Allen v. City of Detroit, 167 Mich. 464 (191 1) 
 Anderson v. Stewart, 285 111. 605 (191 8) 
 Bacon v. Sandberg, 179 Mass. 396, 60 N. E. 
 
 93 (1901) 
 Berry man v. Hotel Savoy Co., 160 Cal. 559 
 
 (1911) 
 Buchanan v. Warley, 245 U. S. 60 (1917) 
 Castleman v. Avignone, 56 App. D. C. 253 
 
 (1926) 
 Columbia College v. Thatcher, 87 N. Y. 311 
 
 (1882) 
 Cooperative Vineyards Co. v. Ft. Stockton 
 
 Irrigated Lands Co., 158 S. W. 1191 
 
 (Tex. Civ. App. 1 913) 
 Corrigan v. Buckley, 271 U. S. 323, 70 L. ed. 
 
 969 (1925) 
 Cornell v. Colorado Springs Co., 100 U. S. 55 
 
 (1879) 
 Curtis v. Rubin, 244 111. 88 (1910) 
 Druecker v. McLaughlin, 235 111. 367, 85 N. 
 
 E. 647 (1908) 
 Easterbrook v. Hebrew L. Orphan Soc, 85 
 
 Conn. 289 (1912) 
 Eckhartv. Irons, 128 111. 568 (1889) 
 Erichsen v. Tapert, 172 Mich. 457 (191 2) 
 Ewersten v. Gerstenberg, 186 111. 344 (1900) 
 Forstmann v. Joray Holding Co., 244 N. Y. 
 
 22 (1926) 
 Fry^ v. Partridge, 82 111. 267 (1876) 
 Godley v. Weisman, 113 Minn. 1 (1916) 
 Gordon v. Caldwell, 235 111. App. 170 (1924) 
 Harmon v. Burow, 263 Pa. 188 (191 9) 
 Henderson v. Champion, 83 N. J. Eq. 554, 
 
 91 Atl. 332 (1914) 
 Highland Realty Co. v. Groves, 130 Ky. 374, 
 
 113 S. W. 420 (1908) 
 Hutchinson v. JJlrich, 145 111. 336 (1893) 
 Jackson v. Stevenson, 156 Mass. 496 (1892) 
 Janss Investment Co. v. Walden, 196 Cal. 753, 
 
 239 Pac. 34 (1925) 
 Johnson v. //^jj, 126 Ind. 298 (1890) 
 Johnson v. Jones, 244 Pa. St. 386 (1914) 
 JoweJ v. Northwest Real Estate Co., 149 Md. 
 
 271, 131 Atl. 446 (1925) 
 Jones v. PotV Huron Engine Co., 171 III. 502 
 
 (1898) 
 jW;/ v. Robinson, 41 Colo. 222 (1907) 
 Killien v. Goodman, 229 Mich. 393 (1924) 
 Kneip v. Schroeder, 255 111. 621 (191 2) 
 iCofA v. Streuter, 232 111. 594 (1908) 
 Koehler v. Rowland, 275 Mo. 573, (191 8) 
 Kramer v. Nelson, 189 Wis. 560 (1926) 
 Landsberg v. Rosenwasser, 124 N. Y. App. 
 
 Div. 559 (1928) 
 
 Leonard v. Hotel Majestic Co., 17 N. Y. Misc. 
 
 229, 40 N. Y. Supp. 1044 (1896) 
 Library Neighborhood Assn. v. Goosen, 229 
 
 Mich. 89 (1924) 
 Los Angeles Investment Co. v. Gary, 181 Cal. 
 
 680, 186 Pac. 596 (1920) 
 Ludgate v. Somerville, ill Ore. 643, 256 Pac. 
 
 1043 (1927) 
 McCusker v. Goode, 185 Mass. 607 (1904) 
 McNeil v. Gary, 40 App. D. C. 397 (1913) 
 McNichol v. Townsend, 73 N. J. Eq. 276 
 
 (1907) 
 Melson v. Ormsby, 169 la. 522 (191 5) 
 Minard v. Delaware, Lackawanna & Western 
 
 Railroad Co., 139 Fed. 60 (1905) 
 Minkus v. Pond, 326 111. 467, 158 N. E. 121 
 
 (1927) 
 Mitchell v. Leavitt, 30 Conn. 587 (1862) 
 Moore v. Curry, 176 Mich. 456; 142 N. W. 
 
 839 (1913) 
 Nee tow v. City of Cambridge, Mass., No. 509 
 
 U. S. Sup. Ct., 72 L. ed., 48 Sup. Ct. 
 
 Rep. (Decided May 14, 1928) 
 Ocean City Assn. v. Chalfant, 65 N. J. Eq. 
 
 156, 55 Atl. 801 (1903) 
 Page v. Murray, 46 N. J. Eq. 325 (1890) 
 Parmalee v. Morris, 218 Mich. 624 (1922) 
 Peabody Heights Co. v. Willson, 82 Md. 186 
 
 (1895) 
 Porter v. Barrett, 233 Mich. 373 (1925) 
 Post v. Weil, 115 N. Y. 361 (1889) 
 Randall v. Atlanta Adv. Serv., 159 Ga. 217 
 
 (1924) 
 River Bank Imp. Co. v. Bancroft, 209 Mass. 
 
 217, 95 N. E. 216 (1911) 
 Sanford v. Keer, 80 N. J. Eq. 240, 83 Atl. 
 
 225 (1912) 
 Schoonmaker v. Hecksher, 171 N. Y. App 
 
 Div. 148, 157 N. Y. Supp. 75 (1916) 
 Sharp v. Ropes, no Mass. 381 (1872) 
 Simpson v. Mikkelsen, 196 111. 575 (1902) 
 Skinner v. Shepard, 130 Mass. 180 (1881) 
 Stevens v. Annex Realty Co., 173 Mo. 511 
 
 (1900) 
 Summers v. Beeler, 90 Md. 475 (1899) 
 ^aw iStfW/ v. Rose, 260 111. 401 (1913) 
 Vorenberg v. Bunnell, ic,-j Mass. 399, 153 
 
 N. E. 884 (1926) 
 Welch v. Swasey, 193 Mass. 364 (1907) 
 Wiegman v. Kusel, 270 111. 520 (191 5) 
 Wood v. Stehrer, 119 Md. 143, 86 Atl. 128 
 
 (1912) 
 Wright v. Pjrimmer, 99 Neb. 447 (1916) 
 Zinn v. Sidler, 268 Mo. 680 (1916) 
 Zipp v. Barker, 55 N. Y. Supp. 246 (1898) 
 
INDEX 
 
 A 
 
 Abatement of restrictions, right to 64 
 
 Administration of restrictions 
 
 see Building plans, Duration, Enforcement, Ex- 
 tension, Maintenance charges 
 Alienation 
 
 validity of restraints on 46 
 
 see also Racial restrictions 
 
 Alterations, approval of . 35 
 
 Apartment uses 
 
 see Residential uses 
 
 Architectural control 12, 36, 37 
 
 Area restrictions 
 
 further Subdivision 44, 45 
 
 percentage of lot area covered 44 
 
 size of lots 12, 44, 45 
 
 Art jury 36 
 
 Assignment of powers 55 
 
 B 
 
 Borrowing, affected by restrictions 74 
 
 Building codes 7 
 
 Building lines 
 
 classifications of 38 
 
 importance of 37 
 
 location of outbuildings 43 
 
 platting of 12 
 
 setback 38 
 
 Building plans, approval of 34 
 
 administration of 35~3^> 
 
 as selling asset 35 
 
 compared with architectural control 37 
 
 legality 36 
 
 Business uses 
 
 see Commercial uses 
 
 Chicago lake front, restrictions on 1 
 
 Commercial uses 
 
 location 1 1-12 
 
 prohibition of 32 
 
 Community Associations 
 see Owners' Associations 
 
 Community features 
 
 effect of type of development 10 
 
 interior parkways 13 
 
 plan for I3~i4 
 
 recreational areas II, 13, 14 
 
 school sites 13 
 
 Condition subsequent 
 
 distinguished from covenant 18-19 
 
 method of drafting 19-20 
 
 when to use 20, 65 
 
 see also Remedies 
 
 Control of urban development 
 
 need for 3-4 
 
 purposes of 4-5 
 
 see also Planning 
 
 Cost of buildings 37 
 
 Courts 
 
 attitude toward restrictions 19, 25 
 
 see also Enforcement 
 
 Covenant 
 
 distinguished from condition 18-19 
 
 when to use 19, 65 
 
 see also Remedies 
 
 Covenants running with the land 20 
 
 D 
 
 Damages 
 see Remedies 
 
 Deed 
 
 definition 16 
 
 essential parts 17 
 
 provisions regarding zoning 70 
 
 Deed restrictions 
 
 compared with zoning 74 _ 78 
 
 methods of imposing 14 
 
 release of 24 
 
 right to impose 17 
 
 see also Control of urban development; Courts; 
 Zoning 
 
 Developer's plan 
 
 as basis of restrictions 14 
 
 defined 8 
 
 factors conditioning 9-10 
 
 items in 10-14 
 
 significance in city plan 8 
 
 survey as prerequisite 9 
 
 Duration of restrictions 
 
 average duration 56 
 
 determination of 57 - 59> 61 
 
 effect on land values 73 
 
 see also Extension of restrictions 
 
 Easements 13, 43, 52 
 
 Enforcement 
 considerations in 
 
 changing character of district 23-24 
 
 covenant or condition 1 8-20 
 
 doctrine of notice 21 
 
 effect of general plan 23 
 
 intention of parties 23 
 
 privity of contract 22, 25 
 
 privity of estate 22,25 
 
 right of 22, 62-64 
 
 see also Remedies 
 
 Equitable easements 25 
 
 Extention of restrictions 60-61 
 
 Garages 
 
 see Outbuildings 
 Golf courses 
 
 see Community features, recreational areas 
 
 H 
 
 Height of buildings 
 
 Homes' Associations 
 see Owners' Associations 
 
 •36,37 
 
INDEX 
 
 83 
 
 1 
 
 sociations 
 
 see Owners' Associations 
 Improvements 
 
 important • nning. . . . 
 
 provisions for installation. . 
 Injun; 
 
 see Remedies 
 
 see also Enforcement 
 Interior parkways 
 
 see Community features 
 Interpretation oi restrictions 
 
 see Courts; Enf. rcement 
 
 ...13 
 
 52,53 
 
 L 
 
 65 
 
 Land 
 
 characteristics of 4-5 
 
 production ot, defined 3 
 
 ling 
 
 see Planning 
 Land uses 
 
 distribution of 11 
 
 ommercial uses; Residential uses 
 Land values 
 
 affected b; duration of restrictions 73 
 
 effect of planning 12 
 
 stabilization of 5 
 
 Legal aspects 
 
 summarized 24-26 
 
 see also Courts; Enforcement 
 
 Location of subdivision, effect on plan 9, 10 
 
 Lots 
 
 um area 45 
 
 minimum frontage 44 
 
 see also Area restrictions 
 
 M 
 
 Maintenance charges 66-67 
 
 bounds subdividing, statutory prohibi- 
 tion. 7 
 
 of restrictions 54-55, 62 
 
 Mortgages 
 
 see Borro . 
 Multi-family uses 
 see Residential uses 
 
 N 
 
 Notice, doctrine of 21 
 
 see also Enforcement 
 
 uisances, restrictions on 27 
 
 O 
 
 gality of restrictions on 49 
 
 I rictions on 23 
 
 Owner! :>ns 
 
 duties 35, 67, 70 
 
 organization of 68 
 
 Ownership, restraints on 
 see Alienation 
 
 Parks 
 
 imunity features, recreational areas 
 
 Planning 
 city 
 
 development of 2-3 
 
 sets minimum standards 7 
 
 subdivision 
 
 development of 2—3 
 
 supplementing city planning 6 
 
 see also Developer's plan 
 Playgrounds 
 
 see Community features, recreational areas 
 
 Privity of contract 22, 25 
 
 see also Enforcement 
 
 Privity of estate 22, 25 
 
 see also Enforcement 
 
 Protection of investment by restrictions 73, 74 
 
 see also Land values 
 
 R 
 
 Racial restrictions 
 
 constitutionality 47 
 
 form of restriction 51 
 
 geographical distribution 50 
 
 prevalence 46 
 
 Recording of restrictions 20 
 
 Recreational areas 
 
 see Community features 
 Re-entry 
 
 see Remedies 
 
 see also Enforcement 
 Releasing restrictions 
 
 methods of 24 
 
 results of 61 
 
 Remedies 
 
 at law 
 
 re-entry 18, 19, 65 
 
 damages 18,19 
 
 in equity 
 
 injunction 1 8, 1 9, 64 
 
 see also Enforcement 
 Residential uses 
 
 apartments, location 12 
 
 multi-family residences, location 12 
 
 single-family residences 
 
 definition of 32 
 
 location 12 
 
 Relation of subdivision to adjacent area, effect on 
 
 plan 9-10 
 
 Reversion of title 
 
 see Remedies 
 
 S 
 
 School sites 
 
 see Community features 
 
 Selection of area, effect on plan 9, 10 
 
 Setback 
 
 see Building lines 
 
 Single-family uses 
 see Residential uses 
 
 Streets 
 
 joining subdivision to adjacent area 11 
 
 within subdivision 11 
 
 see also Building lines 
 
 Subdivider 
 
 aims in sale of land 72 
 
 in enforcement of restrictions 62, 64 
 
 powers 54 
 
 Subdivision, distinguished from "subdivision devel- 
 opment" 8 
 
8 4 
 
 DEED RESTRICTIONS IN SUBDIVISION DEVELOPMENT 
 
 Subdivision control ordinances 
 
 as working rules 7 
 
 development of 78 
 
 T 
 
 Time limit for building, restrictions on 34 
 
 Topography, effect on developer's plan 9 
 
 Transportation 
 
 effect on developer's plan 9 
 
 importance in control 3 
 
 U 
 
 Urbanization, rate of 
 
 as need for land control 3 
 
 Utilities 
 
 see Improvements 
 
 V 
 
 Value 
 
 see Land Values 
 
 Violation of restrictions 61, 73 
 
 modification as grounds for 54, 55 
 
 see also Enforcement 
 
 W 
 
 Working rules of subdividers 
 
 z 
 
 Zoning 
 
 contrasted with restrictions 74 
 
 ordinances as working rules 7 
 
 ordinances referred to in deeds 70 
 
 relation to developer's plan 10 
 
 jLINOIS historical survey 
 
ILLINOIS HISTORICAL SURVEY 
 
ILLINOIS HISTORICAL SURVEY 
 
UNIVERSITY OF ILLINOIS-URBANA 
 
 710.1M74U C001 
 
 THE USE OF DEED RESTRICTIONS IN SUBDIVIS 
 
 3 0112 025317659