Request By:
John B. Southard, Jr., Esq.
P.O. Box 43146
11712 Main Street
Middletown, Kentucky 40243
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter concerning the enforcement of restrictive covenants. Several residents of a subdivision development within the city limits of Middletown approached the city governing body and requested that the city enforce, through some sort of criminal or civil action, the restrictive covenants contained in the deeds to this particular development.
As city attorney you advised the city governing body that the city could not enforce restrictive covenants contained in the real estate deeds. You further stated that the restrictive covenants are enforceable in a breach of contract action by those persons against the party committing the breach. Your opinion did not satisfy the property owners, however, and you have asked this office to review your opinion and determine whether our position would be consistent with the opinion you rendered to the city governing body.
In 21 C.J.S. Covenants § 1, it is stated that, "A covenant is an agreement duly made to do or not to do a particular act. It is a species of express contract; and is a contract of a special nature." Furthermore, covenants may be divided into two classes: Covenants in deed, or express covenants, and covenants in law, or implied covenants. At 21 C.J.S. Covenants § 22, the following appears:
"All covenants are either real or personal. The rule has been broadly stated that real covenants are those so clearly connected with the realty that their benefit or burden passes with it, and that all others, as, for example, those intended to bind the covenantor only and not to become a charge on the realty are considered personal covenants. "
In 21 C.J.S. Covenants § 54, it is said that, "A covenant running with the land is one so relating to the land, or which so 'touches and concerns the land' itself, that its benefit or obligation passes with the ownership irrespective of the consent of subsequent parties." Kentucky is among those jurisdictions committed to the view that restrictive covenants constitute property rights which run with the land.
McFarland v. Hanley, Ky., 258 S.W.2d 3 (1953). However, each case involving restrictions on the use of property must be decided on its merits - on the particular terms of the instrument and the facts of the case.
Robertson v. Western Baptist Hospital, Ky., 267 S.W.2d 395 (1954).
As to those persons entitled to enforce real covenants, as a general rule, they may be enforced by those for whose benefit they were made. For the breach of a real covenant the person for whom it was made may sue unless he has parted with his title. Generally one who is not the owner of the land at the time of the breach is not entitled to enforce a real covenant. See 21 C.J.S. Covenants §§ 80-82.
In 20 Am.Jur.2d Covenants, Conditions, Etc. § 288 the following appears:
"The question as to the persons by and against whom restrictive covenants are enforceable depends primarily upon the intention of the parties. Broadly speaking, a suit for equitable enforcement of a restrictive covenant is maintainable only by one for whose benefit the covenant was intended, and is not enforceable by one who has no right or interest in the land for the benefit of which the restriction was imposed. Various factual situations bear upon this intention, both in the determination of the persons entitled to enforce such covenants and the persons against whom they are enforceable. "
In 26 C.J.S. Deeds § 167(1) it is stated:
"A valid restriction as to the use of property contained in a conveyance may be enforced by the parties, and may be enforced only by them or those in privity with them, except as a third person for whose benefit it is made may, under principles hereinafter discussed, be entitled to enforce it in equity."
The Court, in Humana, Inc. v. Metts, Ky.App., 571 S.W.2d 622 (1978), concluded that a restrictive covenant placed in a deed of conveyance in a large subdivision development which was relied upon by other property owners in developing the area, was intended to run with the land and could be enforced by individual property owners as well as by the vendor-developer. In
Macy v. Wormald, Ky., 329 S.W.2d 212 (1959), the Court said that the law and equity will protect and enforce the property rights of those who have built and bought residential homes in reliance upon deed restrictions. See also
Jones v. Lambert, Ky., 298 S.W.2d 297 (1957) and
Fortner v. Gulf Refining Company, Ky., 316 S.W.2d 65 (1958).
The usual remedy for a breach of a covenant is an action at law for damages. A breach of covenant confers a right of action but unless actual loss has been occasioned by the breach of a covenant, only nominal damages can be recovered. 21 C.J.S. Covenants §§ 114 and 116.
In conclusion, it is our opinion that an action for the enforcement of restrictive covenants is generally maintainable only by those for whose benefit the covenants were intended and they are not enforceable by one who has no right or interest in the land for the benefit of which restrictions were imposed. As we understand your fact situation, the city is not a party to the deeds of conveyance containing the restrictive covenants, the covenants were not made for the benefit of the city and the city is not in privity with those who are parties to deeds of conveyance containing the restrictive covenants. If the restrictive covenants have been breached, the affected property owners, and not the city, should institute legal proceedings.