Levine v. Feldman , 1923 Ohio Misc. LEXIS 2060 ( 1923 )

LEVINE, J.:

Epitomized Opinion

One Garher subdivided certain property into 17 lots, 14 of which, including lots one and two, were so restricted by provisions in the deeds that they could not he used for business purposes, the covenant of Restriction running with the land. Feldman purchased lots one and two, erecting on lot one building which her husband used as a garage and for storing stock used by him in the plumbing business. Feldman’s husband also used lot. two for storing such stock. Feldman later began construction of a building on lot two which she represented was to be used as a garage, but Feldman’s husband used said building for business purposes, moving into it a large pipe-cutting machine. Still later Feldman began the erection of a shop on lot two. Levine seeks an injunction restraining the use of said property to restrictions. Feldman claims that since her deed to said lots contained no notice of said restrictions, she is not bound by them, and further that Levine was guilty of laches. Held by Court of Appeals in granting the injunction:

1. Although restrictions on real propery do not appear in the deed, knowledge of a general plan for the improvement of said property is sufficient notice of the restriction. The notice need not be express or actual but "may be implied.

Attorneys — Mooney, Hahn, Loeser & Keough, for Levine; L. M. Rich, for Feldman:

2. Where the covenant runs with the land it binds the owner of the land whether such owner had knowledge of. it or not.

3. The right to sue upon a covenant relating to land may pass to a subsequent owner of the land claiming under the covenantee, by reason merely of the conveyance of the land.

4. Mere silence or inaction of complaintant seeking to enforce a restrictive covenant is not in itself laches in the absence of fraudulent intent. Failure to bring action while the owner makes expenditures in good faith would be laches.