Northridge Ass'n of St. Joseph, Inc. v. Welsh

924 S.W.2d 305, 1996 Mo. App. LEXIS 984, 1996 WL 309496
CourtMissouri Court of Appeals
DecidedJune 11, 1996
DocketNo. WD 51054
StatusPublished
Cited by1 cases

This text of 924 S.W.2d 305 (Northridge Ass'n of St. Joseph, Inc. v. Welsh) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northridge Ass'n of St. Joseph, Inc. v. Welsh, 924 S.W.2d 305, 1996 Mo. App. LEXIS 984, 1996 WL 309496 (Mo. Ct. App. 1996).

Opinion

HANNA, Presiding Judge.

Defendants, Michael J. and Paula J. Welsh, appeal from the circuit court’s order granting a mandatory injunction in favor of plaintiffs, Orville E. and Dorothy A. Blume, ordering the defendants to permanently remove a satellite dish from their property. The issue presented concerns the definition of a satellite dish which, in turn, determines whether the two or ten year statute of limitations applies.

The facts are undisputed. In 1977, a “Declaration of Covenants, Conditions and Restrictions,” which placed deed restrictions on the defendants’ and plaintiffs’ residential lots, was recorded in the Buchanan County Recorder of Deed’s Office. In 1990, the defendants put a satellite dish on their property. Thereafter, Northridge Association of St. Joseph (Northridge) notified them, in writing, that the satellite dish was prohibited by the deed restrictions. In July 1991, Northridge filed a Petition for Mandatory Injunction to compel the defendants to remove the satellite dish. The defendants answered that Nor-thridge lacked standing to bring the action, and the petition was barred by the two year statute of limitations set forth in § 516.095, RSMo 1994. The defendants’ filed a counterclaim, which requested that the court set aside liens filed by Northridge against them for their failure to pay Homeowner’s Association dues. A copy of the Certificate of NonPayment of Assessment, filed with the Buchanan County Office of the Recorder of Deeds, was attached to, and incorporated by reference into, the counterclaim.

In December 1994, the Blumes intervened as plaintiffs. The defendants renewed their two year statute of limitations affirmative defense.

The court dismissed Northridge as a party on the grounds that it was not the real party in interest, but found that the Blumes had standing to enforce the deed restrictions. The court found that the ten year statute of limitations set forth in § 516.010, RSMo 1994, applied and ordered the defendants to permanently remove the satellite dish. The court held that it would not determine whether Northridge was the proper party to file and remove liens because no proof that a lien had been filed by Northridge against the defendants’ property was offered at trial.

In a court tried case, our standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo.1976), and we must uphold the trial court’s judgment unless it is not supported by the evidence, is against the weight of the evidence, or the court has erroneously declared or applied the law. Id. at 32.

In their first point, the defendants claim that the trial court erred in granting the permanent injunction because the claims were barred by the two year statute of limitations set forth in § 516.095, RSMo 1994, which provides, in pertinent part:

No action for breach of a covenant restricting use of land caused or resulting from the size, height, cost or location of buildings or other visible improvements shall be commenced after two years from the date ... when the right of action accrues .... (emphasis added).

The defendants argue that their satellite dish was a type of building, subject to § 516.095. They rely on Sherwood Estates Homes Association v. Watt, 579 S.W.2d 851 (Mo.App.1979), and Perry v. Spavale, 828 S.W.2d 709 (Mo.App.1992), as support.

[307]*307In Sherwood, the defendant had a storage shed on his property, and the plaintiff sought to enforce a restrictive covenant, which prohibited “outbuildings” on residential lots. Sherwood, 579 S.W.2d at 852. The restriction defined an “outbuilding” as “an enclosed covered structure not directly attached to the dwelling which it serves.” Id. The question before the court was solely one of location— whether the storage shed was located so as to be connected to the dwelling. Id. at 853. Because the Sherwood case involved the location and removal of a building, it fell within the provisions of § 516.095, and the two year statute of limitations applied. Id.

In Perry, the court found a 120 foot tall radio transmission tower to be a building. Perry, 828 S.W.2d at 713. However, the court’s analysis focused on whether the radio tower was a building for purposes of the restrictive covenant at issue in that case, not for purposes of § 516.095.

Like the defendants here, the defendants in Terre Du Lac Property Owners’ Association, Inc. v. Wideman, 655 S.W.2d 803 (Mo.App.1983), argued that § 516.095 barred the plaintiffs claims that the defendants were in violation of a restrictive covenant. The plaintiff argued that an electric sign and construction equipment placed in the defendants’ yard for commercial purposes violated a restrictive covenant. The Terre court held that § 516.095 did not apply because neither the electric sign nor the equipment were visible improvements or buildings, as referred to in the statute. Id. at 806.

In this case, the deed restriction at issue does not relate to the size, height, cost, or location of the satellite dish. Further, the dish does not qualify as a building or other visible improvement. The word “building,” in its broad sense, refers to that which is constructed. Perry, 828 S.W.2d at 712. In its narrow sense, the word “building” refers to a structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education, and the like, which encloses a space within its walls and usually is covered by a roof. Id. The satellite dish at issue here is not a building in either sense of the word.

The two year statute of limitations set forth in § 516.095 is not applicable in this case. Instead, as asserted by the plaintiffs, § 516.010, RSMo 1994, is the applicable statute of limitations. Section 516.010 provides that “[no] action for the recovery of any lands, tenements or hereditaments ... shall be commenced ... by any person ... unless it appears that the plaintiff was seized or possessed of the premises in question within ten years before the commencement of such action.”

A covenant imposing valid restrictions upon lots within a given area creates an easement appurtenant thereto, and the owner of each lot has an easement in each lot affected by the restrictions. McLaughlin v. Neiger, 286 S.W.2d 380, 383 (Mo.App.1956). The instant easement, prohibiting the defendants from placing a satellite dish on their property, is a hereditament. That is, it is a right appurtenant to real property and would pass by inheritance with the lot to which it is appurtenant. Id. at 384. The plaintiffs seek to restore their easement in the defendants’ lot. This action is controlled by § 516.010, which specifically applies to hereditaments. Id.; see also Terre Du Lac, 655 S.W.2d at 805. The trial court properly applied § 516.010. Point denied.

In their second point, the defendants allege that the trial court erred in not setting aside liens allegedly filed by Northridge.

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Bluebook (online)
924 S.W.2d 305, 1996 Mo. App. LEXIS 984, 1996 WL 309496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northridge-assn-of-st-joseph-inc-v-welsh-moctapp-1996.