710.1
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Studies in Land Economics

Research Monograph No. i
Richard T. Ely, Editor

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
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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

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

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

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

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

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-

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

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.

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

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

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

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).

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

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.

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

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).

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

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.

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

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

$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

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

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

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.

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

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

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

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-

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

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.

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

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.

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

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

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

J. C. Nichols Inv. Co.
Kansas City, Mo.

Anchorage, Ky.

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

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

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

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

Howard-Lincoln etc. Add'n

Krenn & Dato, Inc.
Chicago, 111.

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

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

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

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

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

Alienation

Occupancy

Sunnymede

Whitcomb & Keller
S. Bend, Ind.

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

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

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

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

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

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.

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

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.

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

Cases

Average
Duration
in Years

Total

Olmsted Group

Actual duration

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

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

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

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

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

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.

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

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

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.

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

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

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

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).

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

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.

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

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.

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

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

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-

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

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

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).

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.

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

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 Enforcement

Covenant

distinguished from condition 18-19

when to use 19, 65

see also Enforcement

uisances, restrictions on 27

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 Enforcement

Privity of estate 22, 25

see also Enforcement

Protection of investment by restrictions 73, 74

see also Enforcement

Working rules of subdividers

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

UNIVERSITY OF ILLINOIS-URBANA

710.1M74U C001

THE USE OF DEED RESTRICTIONS IN SUBDIVIS

3 0112 025317659