## Facts

- Wade Schartz, Thon P. Schartz, Edna Schartz, and William Esfeld owned commercial properties in the same platted subdivision.
- The subdivision was subject to a recorded restrictive covenant requiring that no building or obstruction be erected or maintained within an 80‑foot setback from a described boundary line.
- In 1975, Esfeld sold a subdivision lot to D R B & M Real Estate Partnership (DRBM) for construction of a Taco Tico restaurant; Taco Tico, Inc. was also involved as a defendant.
- DRBM constructed the restaurant building so that, once completed, it encroached 24 feet into the restricted setback area.
- During construction, Esfeld observed where the building was being placed but did not inform DRBM about the recorded setback covenant.
- A tenant of Wade Schartz complained about the new building, and Wade Schartz contacted an attorney; by the time the attorney sent a letter asserting the setback requirement, construction was finished.
- Plaintiffs sued DRBM and Taco Tico seeking a mandatory injunction requiring the building to be moved out of the setback area.
- Defendants asserted equitable defenses, including laches and clean hands, arguing (among other points) that Esfeld waited too long to object and that Edna Schartz had her own structure inside the setback.
- The trial court found laches applicable to Esfeld and found Edna Schartz lacked clean hands, but still granted a mandatory injunction requiring removal of the portion of the building within the setback.
- Defendants appealed from the injunction.

## Issues

1. Whether a recorded 80‑foot building-setback covenant may be enforced by mandatory injunction requiring removal of a completed structure that encroaches into the setback.
2. Whether equitable defenses (including laches, waiver/acquiescence, and clean hands) bar enforcement when those defenses apply, at most, to only some of the plaintiffs and when prior violations in the subdivision were minor.

## Decision

- The Kansas Court of Appeals affirmed the trial court’s judgment granting injunctive relief.
- The court held the recorded restrictive setback covenant was enforceable in equity against defendants who took the property with at least constructive notice from the public record.
- The court upheld a mandatory injunction requiring removal of the portion of the building located within the restricted setback area.
- The court rejected laches and clean-hands arguments as a complete bar because those doctrines did not apply to all plaintiffs, and other circumstances did not make enforcement inequitable.
- The court treated prior deviations in the subdivision as minor and not a basis to deny relief for a substantial encroachment that threatened the subdivision’s original development plan.

## Legal Principles

- Restrictive covenants are enforced in equity based on notice; a party who takes land with actual or constructive notice of a recorded restriction may be restrained from violating it.
- Injunction is a standard remedy for breach of a restrictive covenant, and a mandatory injunction may order removal of a building or structure that violates the restriction when the circumstances justify it.
- Laches, waiver, and acquiescence do not automatically defeat enforcement; mere inaction does not bar relief as long as the restriction still has value and enforcement is not unfair under the facts.
- Minor, readily removable prior violations do not necessarily show abandonment of a restrictive scheme and do not prevent relief against a later, more serious violation that would substantially change the neighborhood’s planned character.
- Clean hands and laches are plaintiff-specific equitable defenses; when such defenses are not applicable to all plaintiffs, they do not defeat enforcement where other plaintiffs are entitled to equitable relief.

## Conclusion

The court affirmed a mandatory injunction requiring removal of a Taco Tico building’s encroaching portion because the setback covenant was recorded and enforceable against purchasers with record notice, and equitable defenses such as laches and clean hands did not bar relief where they did not apply to all plaintiffs and the restriction retained value despite minor prior violations.


Schartz v. D R B & M Real Estate Partnership, 621 P.2d 1024 (1982)