Real Property: Residential Subdivision-Indentures

Plaintiff’s residential subdivision was subject to indentures that included a restriction that “only one residence shall be erected on each lot” and that other lot owners were entitled to a right of first refusal on a proposed sale. Defendant acquired a lot in the subdivision from the prior owner, who provided notice of the sale to the other owners 15 days prior to closing but failed to identify the proposed buyer. After closing, defendant proposed to subdivide its lots. Plaintiff sought to void the sale and enjoin defendant from building a second home on the lot. The circuit court affirmed the sale but enjoined defendant from building a second home.

Where the record supported finding that the original owner reasonably complied with the subdivision’s requirements for a right of first refusal, plaintiff’s efforts to void the sale constituted an abuse of process, but plaintiff could restrict defendant from building a second home on its lots pursuant to the indentures.

Powell, J, concurring in part and dissenting in part: “I respectfully dissent as to section V. B. of the principal opinion because I disagree with its conclusion that a restrictive covenant that states “[o]nly one residence shall be erected on each lot,” precludes subdivision of a lot within Clayton Terrace. Because nothing in the text of this restrictive covenant, or any other covenant governing Clayton Terrace, prohibits subdivision of lots, I would reverse the circuit court’s judgment enjoining 6 Clayton Terrace from subdividing its privately owned lot.”

Judgment is affirmed in part and reversed in part.

Trustees of Clayton Terrance Subdivision v. 6 Clayton Terrace LLC (MLW No. 73772/Case No. SC87349 – 33 pages) (Supreme Court of Missouri, Stith, J.) Appealed from circuit court, St. Louis County, Hood, J. (Steven M. Cohen and Jeffrey M. Igou, St. Louis, and John Hein and Grant J. Mabie, St. Louis, for appellants/cross-appellees) (S. Todd Hamby, Gerard T. Carmody, Becky R. Eggmann, and Ryan M. Prsha, St. Louis, and Michael Clithero and Lauren M. Wacker, Clayton, for appellee/cross-appellant)