Review of the judgment of the Court of Appeals in 36 Kan. App. 2d 19, 136 P.3d 957 (2006). Appeal from Montgomery district court; ROGER L. GOSSARD, judge.
1. The enforceability of a restrictive covenant contained in a written deed raises a question of law, reviewable de novo by an appellate court.
2. In order for a restrictive covenant to run with the land, i.e., bind a subsequent owner, the grantor and grantee must intend that the covenant run with the land; the covenant must touch and concern the land; and there must be privity of estate between the original parties to the covenant, the original parties and the present litigants, or between the party claiming the benefit of the covenant and the party burdened. In addition, the covenant must be in writing, and the successor to the burden must have had actual or constructive notice of it.
3. On the facts of this case, the absence of signatures on a recorded deed intended to be signed by the grantors and grantees made a restrictive covenant within it ambiguous and incapable of supporting constructive notice to a subsequent purchaser.
The opinion of the court was delivered by: Beier, J.
Judgment of the Court of Appeals reversing and remanding is reversed. Judgment of the district court is affirmed.
This appeal requires us to evaluate whether a subsequent purchaser is bound by a restrictive covenant contained in a recorded 1978 deed unsigned by the original parties to be bound by the covenant.
Factual and Procedural Background
The pertinent facts are straightforward and undisputed.
On March 8, 1978, G. Weaver Jordan and J. E. Jordan executed a document titled "WARRANTY DEED," which described and conveyed approximately 50 acres to Daniel and Pearline Dallinga for $25,000. After its granting provisions, the deed set forth three restrictive covenants, including the following language:
"In consideration for said conveyance, Daniel W. Dallinga and Pearline B. Dallinga, husband and wife, for themselves, [their heirs], executors, administrators, successors and assigns, hereby jointly and severally covenant with G. Weaver Jordan and J. E. Jordan, husband and wife, their heirs, executors, administrators, successors and assigns that:
"1. No manufacturing or commercial enterprise or enterprise of any kind shall be maintained on, in front of, or in connection with the property hereby conveyed, nor shall such property in any way be used for other than strictly residential purposes. This restriction shall not be construed, however, as preventing the operation of a small scale farming enterprise other than a feed lot.
"It is understood that this conveyance is made and accepted and the realty is hereby granted, on and subject to the above covenants, conditions, restrictions, and reservations, which covenants, conditions, restrictions and reservations shall apply to and run with the conveyed land."
Although the deed included lines for the signatures of both grantors and both grantees, the Dallingas never executed it. The deed was filed of record in Montgomery County 2 days later, on March 10, 1978. The Dallingas took possession of the land, built a house on it, and abided ...