J. C. Nichols and the Shaping of Kansas City: Innovation in Planned Residential Communities

5. The Protection of the 1,000 Acres Restricted

5 THE pROTECTION OF THE 1,000 ACRES RESTRICTED J. C. Nichols often spoke of "protecting" his neighborhoods. Many ofhis 1908 advertisements used the phrase that provides the chapter title above. What was implied by protection in this instance was not the strong-arm tactics oforganized criminals; rather, it was the shielding of property values in certain residential areas from depreciation through gradual encroachment by lesser property values in surrounding neighborhoods. Protection is provided for a subdivision by what are commonly called "deed restrictions," which are either made part ofthe deed or referred to in it as binding on the purchaser and on anyone to whom he might sell, lease, or assign the land in the future. Restrictions on the ways a buyer might use the purchased land were not new at the time of J. C. Nichols. They had been used in Kansas City since the 1850s, when Kersey Coates restricted construction in his Coates' Addition to all-brick buildings. The actual heading of the above-mentioned advertisement read: "Have You Seen the Country Club District? 1,000 Acres Restricted for Those Who Want Protection." This was the first usage of the term Country Club District in J. C. Nichols Company advertising. The incorporation of the phrase country club in subdivision names became particularly prevalent during the 1920s across the United States. Nichols appears to be the first to have used it. In a 1913 brochure he extolled the virtues of his development with this concluding sentence: "In the Country Club District you are given the protection that goes with 'a thousand acres restricted.''' Thus, another important form ofprotection provided by Nichols was the large size ofthe controlled development, which went even further to help guarantee long-term value. l 1. Advertisement, Kansas City Star, September 6, 1908, 7C; Scrapbook 2: 130. This discussion of the history and nature of real estate deed restrictions is based primarily on William B. Stoebuck, "Running Covenants: An Analytical Primer," 124 PROTECTION OF THE 1,000 ACRES 125 There has been much legal confusion over deed restrictions. Some have wanted to consider them as part-and-parcel with the land and inseparable from the law of land titles, while other legal interpreters have differed to the point ofsaying that deed restrictions are simply "covenants" between buyer and seller and therefore are covered entirely by contract law. This view is supported by the fact that deed restrictions are often referred to as "restricted covenants." One ofthe more recent thorough studies ofthe problem concludes that a deed restriction is essentially a contract that "runs" with the land. The fact ofits "running" with the land, literally attaching itself to the title ofthe real property, makes it more a feature ofproperty law than ofcontract law.2 In English common law the concept of restrictive covenants, usually referred to in common-law courts as "real covenants," can be traced back to a case in 1583. The seller wanted to require the purchaser ofa particular parcel ofland to build a wall on it, but the purchaser later refused to build the wall. The seller sued to have his requirement or restriction on the use of the land enforced by the courts. In good legal fashion, the court found that the restriction had not been written properly and that the purchaser did not have to build the wall. What has been more important down through the centuries is that the court also stated that ifthe restriction had been written properly, the requirement to build the wall would have been enforceable. The court laid down one other requirement for enforcement at the same time: if a deed restriction is to be enforceable, it must pertain to the way the land is held or used. If the thing or things required are not essential to the holding or using of the land, the court held that they could not be enforced. For example, a purchaser could be required to keep the improvements on the property painted and in good repair, but he could not be required to paint a portrait ofthe seller as a part ofhis right to the use ofthe land. The legal phrase used here is that the requirement must "touch and concern" the land in question.3 and Monchow, Use ofDeed Restrictions. 2. Stoebuck, "Running Covenants," 863-64. 3. Ibid., 865-66. 126 ]. C. NICHOLS AND THE SHAPING OF KANSAS CITY What is remarkable about restrictive covenants...