Freesmeyer v. Dyer Properties, et al.
Published: Jan. 1, 2000 | Result Date: Mar. 24, 1999 | Filing Date: Jan. 1, 1900 |Case number: CV9703472 Verdict – $0
Judge
Court
Maricopa Superior
Attorneys
Plaintiff
Defendant
Facts
East Bartlett Estates is a single family residential neighborhood located in central Phoenix. The boundaries of East Bartlett Estates are Missouri Avenue on the north; Colter Street on the south; 22nd Street on the west; and 24th Street on the east. The plaintiffs are the owners of the three residential lots and single family residences located immediately south of Colter Street adjacent to 24th Street. The defendants are the owners of residential lots and houses in East Bartlett Estates. In a deed dated 1944 and recorded in 1945, the properties now owned by the plaintiffs, as well as other property south of East Bartlett Estates, were restricted to single family residential and agricultural uses, which restrictions were imposed expressly for the benefit of the owners of property in East Bartlett Estates. While conceding that East Bartlett Estates remained exclusively single family residential over 50 years after the deed restrictions were recorded. The plaintiffs alleged that changes in the restricted area and the surrounding neighborhood were so "radical and fundamental" that it was inquitable to enforce the deed restrictions and that the orginal purpose of the restriction - to maintain the restricted area as residential has failed. The plaintiff also alleged that the defendants waived the protection of the deed restrictions by allowing commercial development within the restricted area. The plaintiffs called Reginal Owens, a land planner, to testify concerning the changes in the restricted area and the surrounding neighborhood. The defendants contended that there had been no waiver of the deed restrictions by the defendants; that East Bartlett Estates remained a premiere single family residential neighborhood; and that the deed restrictions had served for over 50 years, and continued to serve today, their original purpose of preserving the single family residential character of East Bartlett Estates.
Settlement Discussions
Because of the nature of the claims involved, which did not involve any award of monetary damages, there were no substantial pretrial settlement discussions or offers of compensation.
Other Information
The court held that there was no waiver by any of the defendants of the deed restrictions or of their right to rely on the deed restrictions; and the plaintiffs failed to carry their burden of proving that there has been a radical and fundamental change in the surrounding area since the time the plaintiffs acquired title to their respective properties or otherwise so as to defeat or frustrate the original purpose of the deed restrictions.
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