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Schartz v. D R B & M Real Estate Partnership

Kansas Court of Appeals
621 P.2d 1024 (1982)


Wade Schartz, Thon Schartz, Edna Schartz, and William Esfeld (plaintiffs) owned commercial real estate properties in the same subdivision. All property in the subdivision was subject to a restrictive covenant that required buildings to be set back 80 feet from one of the subdivision’s boundaries. The restrictive covenant was recorded with the subdivision property deeds. In 1975, Esfeld sold a subdivision lot to D R B & M Real Estate Partnership (DRBM) and Taco Tico, Inc. (Taco Tico) (defendants). DRBM built a store on the property that violated the setback. During the construction, Esfeld saw where the building was being built, but Esfeld did not mention the restrictive covenant to DRBM. After Wade Schartz’s tenant complained about the DRBM building, Wade Schartz contacted his attorney. By the time the attorney sent a letter to DRBM regarding the setback requirement, however, the building was complete. The plaintiffs sued DRBM and Taco Tico seeking an injunction requiring DRMB to get the building out of the setback area. DRBM told the court that, before receiving Wade Schartz’s letter, DRBM did not know about the restrictive covenant’s setback requirements. DRBM and Taco Tico argued that the plaintiffs were not entitled to the injunction because of the equitable doctrines of laches and clean hands. The trial court held that laches applied to Esfeld because he did not speak up sooner. The trial court also held that Edna Schartz did not have clean hands because her building was inside the setback area. Nevertheless, the trial court granted the injunction, effectively forcing DRBM to remove the building. DRBM and Taco Tico appealed.

Rule of Law


Holding and Reasoning (Meyer, J.)

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