IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

DIVISION TWELVE

NORTH COUNTRY VILLAS

HOMEOWNERS ASSOCIATION., et al.

Plaintiffs,

v. Case No. 06 C 205

RANDY J. KOKENGE, et al.,

Defendants.

MEMORANDUM DECISION AND ORDER

This case comes before the Court on Plaintiffs’ Motion for Summary Judgment filed on April 14, 2006, and on the Defendants’ Motion for Summary Judgment filed on the same date. On April 24, 2006, the Plaintiffs’ filed a Response in Opposition to the Defendants’ Motion for Summary Judgment and the Defendants filed a Response to Plaintiffs’ Motion for Summary Judgment on the same date. Oral arguments were held on April 27, 2006. Subsequently, both parties have supplemented their arguments in letters to the Court. Thus, since the issues presented have now been fully briefed and argued, the Court deems both the summary judgment motions to be submitted for ruling.

I. FINDINGS OF FACT

The Court hereby makes the following findings of fact:

1. The Defendants, Charles Nations and Nations Development Corporation were interested in creating a residential sub-division in 1999 near Topeka, Kansas.

2. On March 23, 1999, Charles Nations, as President of Nations Development Corporation, caused the Final Plat for Urban Hills Subdivision No. 14 to be recorded in the office of the Register of Deeds of Shawnee County, Kansas.

3. Urban Hills Subdivision No. 14 consists of real estate with the following legal description, to-wit:

North Half of Section 34, and South Half of Section 27, Township 10 South, Range 15 East, Being a Replat of Lot 18, Block D, Lots 31, 32 and 33, Block E, Urban Hills Subdivision 4; and Lot 10, Block B, Northboro Subdivision in Shawnee County, Kansas.

4. Urban Hills Subdivision 14 is commonly known and referred to as part of the “North Country Villas,” which is a the residential subdivision located north of Topeka, in Shawnee County, Kansas.

5. On September 8, 2000, Charles Nations, as President of Nations Development Corporation, caused the Final Plat for Urban Hills Subdivision No. 15 to be recorded in the office of the Register of Deeds of Shawnee County, Kansas.

6. Urban Hills Subdivision 15 consists of real estate with the following legal description, to-wit:

A Tract of Land Lying in the North Half of Section 34, Township 10 South, Range 15 East, Being a Replat of Lots 1, 2, 3, 4, 5, 6, 7, 15, 16, 17, 18, 19, and 20, Block A, Lots 1, 2, and 3, Block C, Urban Hills Subdivision No. 14 and Lots 27, 28, 29, and 30, Block E, Urban Hills Subdivision No. 4, Shawnee County, Kansas.

7. Urban Hills Subdivision 15 is also commonly known and referred to as part of the “North Country Villas” Subdivision.

8. On January 14, 2001, Nations Development Corporation caused a solicitation regarding the “North Country Villas” to be published in the “At Home” section of the Topeka Capital-Journal.

9. On February 12, 2001, Charles Nations, as President of Nations Development Corporation, caused the “Declaration of Covenants, Restrictions and Dedication of Easements of North Country Villas” (the “Declaration”) to be filed in the office of the Register of Deeds of Shawnee County, Kansas, in Volume 3473, Pages 284-297.

10. By its terms and conditions, the Declaration applied to the “North Country Villas” with the following legal description in Shawnee County, Kansas, to-wit:

Urban Hills Subdivision No. 15, Blocks A, B, and C, together with Urban Hills Subdivision 14, Block A, Lots 8 through 14 and Block B and Block D (the “North Country Villas Real Estate”).

11. The North Country Villas Real Estate has been platted into a series of lots (hereinafter referred to as the “North Country Villa Lots”).

12. Nations Development Corporation caused the Declaration to be drafted.

13. Adopted pursuant to the Kansas Townhouse Ownership Act, K.S.A. 58-3701, et seq., the Declaration provides, in part, as follows:

“NOW THEREFORE, [Nations Development Corporation] declares that the real property referred to and described above is and shall be held, transferred, sold, conveyed and occupied subject to the provisions of the Kansas Townhouse Ownership Act K.S.A. 58-3701 et seq. and the covenants, conditions, restrictions, easements, charges and liens set forth in this Declaration [are] to protect the value, desirability and attractiveness of [The North Country Villas Real Estate]. Said easements, covenants, restrictions and conditions shall run with the real property and shall be binding upon all parties having acquired any right, title, and interest in the real property or part thereof and shall inure to the benefit of each owner thereof.”

14. On April 3, 2001, Nations Development Corporation caused North Country Villas Homeowners Association. (hereinafter the “Association”) to be organized as a not-for-profit corporation, when it filed Articles of Incorporation with the office of the Kansas Secretary of State.

15. The Association was organized to provide care, replacement and maintenance for the North Country Villas Real Estate and North Country Villa Lots.

16. However, Nations Development Corporation never implemented any Bylaws for the Association.

17. Nations Development Corporation caused the North Country Villa Lots to be advertised for sale and successfully sold a number of lots in the subdivision.

18. The following individual Plaintiffs are the owners of real property, upon which villas have been constructed, in the North Villas Real Estate located in Topeka, Shawnee County, Kansas:

a. Mayna P. Schmidt, a single person, owns the property commonly known and described as 5348 NW Lana Court;

b. William B. Harlow and Betty L. Harlow, husband and wife, own the property commonly described as 5346 NW Lana Court;

c. The Doris F. Davidson Trust, D.F. Davidson and J.P. Davidson, Trustees, and the Plaintiff, Marvin C. Davidson Trust, D.F. Davidson and J.P. Davidson, Trustees, own the property commonly described as 5340 NW Lana Court;

d. Clark C. Ward and Mary L. Ward, husband and wife, own the property commonly described as 5338 NW Lana Court;

e. Barbara J. Cramer and Ernest E. Cramer Life Estate own the property commonly described as 5330 NW Lana Court;

f. Richard G. Howard and Janice L. Howard, husband and wife, own the property commonly described as 5332 NW Lana Court;

g. William H. Meyer and Sylvia J. Meyer, husband and wife, own the property commonly described as 5316 NW Lana Court;

h. Deloris Jeannette Howard, a single person, owns the property commonly described as 5314 NW Lana Court;

i. James W. Decker and Barbara A. Decker, husband and wife, own the property commonly described as 5308 NW Lana Court;

j. Mary E. Beems, a single person, owns the property commonly described as 5306 NW Lana Court;

k. The Beverly J. Holdren Trust owns the property commonly described as 5329 NW Lana Court, Topeka;

l. Robert B. Nestler and Elizabeth C. Nestler, husband and wife, own the property commonly described as 5331 NW Lana Court;

m. Pamela K. Broaddus, a single person, owns the property commonly described as 4311 NW 53rd Terrace;

n. Melvin Leroy Mosher and Wilma A. Mosher, husband and wife, own the property commonly described as 4313 NW 53rd Terrace;

o. Johnny L. Gross and Angelita S. Gross, husband and wife, own the property commonly described as 4341 NW 53rd Terrace;

p. Jerry N. Thomas and Deanna M. Thomas, husband and wife, own the property commonly described as 5324 NW Melba Drive Court;

q. Orick M. Steinlicht and Judy M. Steinlicht, husband and wife, own the property commonly described as 5316 NW Melba Drive Court;

r. Theresa Slover, a single person, owns the property commonly described as 4429 NW 43rd Terrace;

s. The Carol M. Morris Trust, C.M. Morris, Trustee, owns the property commonly described as 5312 NW Melba Drive Court;

t. Genevieve A. Woodbury, a single person, owns the property commonly known as 5310 NW. Melba Drive Court;

u. Arliss R. Douglass, a single person, owns the property commonly described as 4343 NW 53rd Terrace; and,

v. Dorothy E. Rygielski, is a single person and owns the property commonly described as 5327 NW Melba Drive Court.

19. All the Individual Plaintiffs purchased their respective properties after the Declaration was filed on February 12, 2001, and took the property subject to the conditions set forth in the recorded document.

20. In June 2003, Charles Nations, as President of Nations Development Corporation, caused the Final Plat for Urban Hills Subdivision No. 17 to be recorded in the office of the Register of Deeds of Shawnee County, Kansas.

21. Urban Hills Subdivision No. 17 consists of real estate with the following legal description, to-wit:

A Replat of Lots 5, 6 and 7, Block C, Urban Hills Subdivision No.15. A Tract of Land located in the North Half of Section 34, Township 10 South, Range 15 East of the 6th P.M., Shawnee County, Kansas.

22. Lots 5, 6 and 7 of Block C contained in Urban Hills Subdivision No. 15 were renamed Lots 1, 2, and 3 of Block A of Urban Hills Subdivision No. 17.

23. On June 22, 2005, after all of the Individual Plaintiffs had purchased their respective North Country Villa Lots, Nations sold certain North Country Villa Lots to Defendants Randy J. Kokenge and Lori A. Kokenge (the “Kokenges”). The Warranty Deed described the property which was conveyed as follows:

“Lot 7, Block A, Urban Hills Subdivision No. 15, Shawnee County, Kansas; except that part of said Lot described as follows: Beginning at the Southwest Corner of Lot 7, Block A, Urban Hills Subdivision No. 15; thence along the West line of said Lot 7, North 0 degrees 47 minutes 00 seconds East, a distance of 11.78 feet; thence South 89 degrees 15 minutes 00 seconds East 79.07 feet to the East line of said Lot 7; thence along said Ease line, South 0 degrees 47 minutes 00 seconds West, 38.78 feet to the South line of said Lot 7; thence along said South line, South 68 degrees 43 minutes 55 seconds West 5.40 feet; thence along said South line, North 67 degrees 51 minutes 57 seconds West, 79.53 feet to the point of beginning.

(Except and subject to easements, restrictions, and reservations of record, and all taxes and assessments that may be levied, imposed or become payable hereafter.)”

24. On November 10, 2005, after all of the Individual Plaintiffs had purchased their respective North Country Villa Lots, Nations Development Corporation sold certain North Country Villa Lots to Defendant Clampitt-Hersh Development, LLC ( Clampitt-Hersh). The Warranty Deed, described the property which was conveyed as follows:

“Tract 1: Lots 1, 2, 3, 4, 5, 6, and 7, Block B and Lot 1, Block C, Urban Hills Subdivision No. 15, Shawnee County Kansas.

Tract 2: Lots 2, 3, and 4, Block D, Urban Hills Subdivision No. 14, Shawnee County, Kansas.

(Subject to easements, restrictions, and reservations of record, and all taxes and assessments that may be levied, imposed, or become payable. . hereafter.)”

25. On November 14, 2005, after the Individual Plaintiffs had purchased their respective North Country Villa Lots, Nations Development Corporation sold certain additional real estate to the Kokenges:

TRACT 1: Lot 26, Block E, Urban Hills Subdivision No. 4, Shawnee County, Kansas.

TRACT 2: Lots 4 and 5, Block A, Urban Hills Subdivision No.11, Shawnee County, Kansas.

TRACT 3: Lots 8 and 14, Block A and Lot 5, Block B, Urban Hills Subdivision No. 14, Shawnee County, Kansas.

TRACT 4: Lots 1, 3, 5 and 6, Block A, Urban Hills Subdivision No. 15, Shawnee County, Kansas. Part of Lot 7, Block A, Urban Hills Subdivision No. 15, Shawnee County, Kansas, describes as follows: Beginning at the southwest Corner of Lot 7, block A, Urban Hills Subdivision No. 15; thence along the West line of said Lot 7, North 0 degrees 47 minutes 00 seconds East, a distance of 11.78 feet; thence South 89 degrees 15 minutes 00 seconds East, 79.07 feet to the East line of said Lot 7; thence along said East line, South 0 degrees 47 minutes 00 seconds West, 38/78 feet to the South line of said Lot 7; thence along said South line, South 68 degrees 43 minutes 55 seconds West, 5.40 feet; thence along said South line, North 67 degrees 51 minutes 57 seconds West, 79.53 feet to the point of beginning. Part of Lot 8, Block A, Urban Hills Subdivision No. 15, Shawnee County, Kansas, described as follows: Beginning at the Southwest Corner of Lot 8, Block A, Urban Hills Subdivision No. 15; thence along the West Line of said Lot 8, North 0 degrees 47 minutes 00 seconds East, 38.78 feet; thence North 87 degrees 48 minutes 49 seconds East, 105.41 feet to the East Line of said Lot 8; thence along said East Line, South 0 degrees 47 minutes 00 seconds West, 1.60 feet to the Southeast Corner of said Lot 8; thence along the south Line of said Lot 8, South 68 degrees 43 minutes 55 seconds West, 113.58 feet to the point of beginning. Lots 2, 3, and 4, block C, Urban Hills Subdivision No. 15, Shawnee County, Kansas.

TRACT: 5: Lots 1, 2, and 3, Block A, Urban Hills Subdivision No. 16, Shawnee County Kansas.

TRACT 6: Lot 2, Block A, Urban Hills Subdivision No. 17, Shawnee County, Kansas.

“(Subject to easements, restrictions, and reservations of record. . . .)”

26. Aside from Tract 1 and Tract 2, the foregoing tracts of real estate sold to the Kokenges on November 14, 2005, are North Country Villa Lots.

27. When the Kokenges and Clampitt – Hersh purchased their respective North Country Villa Lots, the Declaration ran with the land and the real estate which they purchased in the North Country Villas sub-division was conveyed subject to all easements, restrictions and reservations of record.

28. Although it continued to own real property in the North Country Villas subdivision, Nations Development Corporation executed and caused to be filed in the Office of the Register of Deeds of Shawnee County, Kansas, a document styled “Assignment of Developer’s Rights” (the “Assignment”) on November 10, 2005.

29. Under the terms and conditions of the Assignment, Nations Development Corporation assigned and conveyed certain rights to the Kokenges and Clampitt – Hersh, including “all of its interest as Declarant and all of its interest as a Class B membership owner in the Urban Hills Subdivision. . . .”

30. Prior to executing the Assignment, neither Charles Nations nor any representative of Nations Development Corporation informed the Individual Plaintiffs or obtained their consent.

31. On November 10, 2005, Clampitt - Hersh Development, LLC caused to be filed in the Office of the Register of Deeds of Shawnee County a document styled “Revocation of Declarations Recorded At Book 3473, Page 284" (the “Clampitt - Hersh Revocation”), which represented that it had “the right to amend the Declaration as to land owned by Declarant. Moreover, the Clampitt-Hersh Revocation stated: “On that basis, the Declarant does hereby revoke and declare null and void the Declaration as to the lands described [in an attachment].”

32. Prior to executing the Clampitt– Hersh Revocation, Clampitt– Hersh Development, LLC did not inform the Individual Plaintiffs nor did it obtain their consent.

33. On November 14, 2005, the Kokenges caused to be filed in the Office of the Register of Deeds of Shawnee County a document styled “Revocation of Declarations Recorded At Book 3473, Page 284 (the “Kokenge Revocation”), which stated that they had “the right to amend the Declaration as to land owned by Declarant. The Kokenge Revocation further stated : “On that basis, the Declarant does hereby revoke and decree null and void the Declarations as to the lands described [in an attachment].”

34. Prior to executing the Kokenge Revocation, the Kokenges did not inform the Individual Plaintiffs nor obtain their consent.

35. Eight (8) days after Clampitt-Hersh purchased real estate in the North Country Villas Subdivision and filed the Clampitt-Hersh Revocation, Barbara Hersh, as representative for Clampitt-Hersh Development, LLC, sent a letter dated November 18, 2005, to all homeowners which stated: “Nations Development Corporation has sold his remaining land interest [in the North Country Villa Lots] to the consortium of A Construction & Consulting, LLC and Clampitt-Hersh Development, LLC.” The letter further stated that as “successors” the consortium would “manage the association dues that provide lawn mowing and snow scooping.” However, the letter did not mention the fact that the “consortium” had attempted to revoke the Declaration as to the property which they had purchased.

36. Clampitt-Hersh Development, LLC also sent letters on November 22, 2005, to Homeowners who had paid their association dues and on December 8, 2005, to Homeowners who had not paid their association dues. Neither of these letters disclosed the filing of the Revocations nor did they disclose the plan to construct a multi-family (4-plex) on North Country Villa Lots.

37. On November 28, 2005, Randy Kokenge filed a Building Permit Application with Shawnee County, Kansas, for the construction of a multi-family

dwelling (4-plex) at 5337 (A&B) NW Lana Court, Topeka, Kansas, and 5339 (A&B) NW Lana Court, Topeka, Kansas, which are North Country Villa Lots.

38. On November 28, 2005, the Shawnee County Planning Department issued a Building Permit to the Randy Kokenge for the construction of a six (6) bedroom multi-family dwelling (4-plex) at 5337 and 5339 Lana Court, Topeka, Kansas.

39. On December 28, 2005, Barbara Hersh, Gayle Clampitt and Randy Kokenge sent a letter advising them that they had transferred management in the North Country Villas Homeowner’s Association to the homeowners. The letter further stated: “As Declarants the properties we purchased are exempt from the North Country Villas Homeowners Association and their restrictions. . . .”

40. The Kokenges have begun construction on a multi-family dwelling (4-plex) on a North Country Villa Lot, with the following legal description, to-wit:

Lot 2, Block A, Urban Hills Subdivision No. 17, Shawnee County Kansas, (commonly known and described as 5337 NW Lana Court, Topeka, Kansas).

41. Lot 2, Block A, Urban Hills Subdivision No. 17 was formerly known and described as Lot 6, Block C, Urban Hills Subdivision No. 15.

42. Pursuant to the restrictions contained in the Declaration, the Individual Plaintiffs have demanded the Kokenges cease construction of 4-plex.

43. The Kokenges have agreed to cease construction of the 4-plex on the North Country Villa Lot until this case has been resolved.

44. The Declarations provide that “no building … or other improvement or structure shall be constructed … upon the [North Country Villas Lots] … until the complete plans and specifications, showing the precise and exact nature, kind, shape, height set-back materials, color and location of the same shall have been submitted to and approved in writing by the Board of Directors of the [Association].”

45. On January 27, 2006, a letter was sent to all homeowners, including Charles Nations and Nations Development Corporation, advising them of a neighborhood meeting to be held on February 1, 2006.

46. On January 27, 2006, a notice was also sent to Gayle Clampitt, Barbara Hersh, and Randy Kokenge advising them that a meeting of the homeowners of the North Country Villas would be held on February 1, 2006.

47. On February 1, 2006, the homeowners held a meeting and elected the Board of Directors and the Officers for the North Country Villas Homeowners Association.

48. While the Kokenges and Clampitts – Hersh were provided notice and advised of the date and time of the meeting, they did not attend the meeting nor did they otherwise object to it being held.

49. Charles Nations did attend the meeting on February 1, 2006, and he was present for the election of the Board of Directors and the Officers of the Association.

50. At the meeting of the North Country Villas Homeowners Association, the following were elected to the Board of Directors:

a. Ernie Cramer;

b. John Gross;

c. Bill Harlow;

d. Don Morris;

e. Clark Ward;

f. Doris Davidson; and,

g. Judy Steinlicht.

51. At the meeting of the Association, the Board of Directors then elected the following Officers:

a. Clark Ward, President;

b. Doris Davidson, Treasurer; and,

c. Judy Steinlicht, Secretary.

52. While in attendance, Charles Nations and Nations Development Corporation did not object to the election of the Board of Directors or to the elections of the Officers of the Association.

53. Prior to February 1, 2006, the Association never held a meeting to elect of the Board of Directors or Officers.

54. The following documents have been stipulated by the parties to be authentic, genuine, and admissible as evidence in this case, and the parties have waived any and all objections as to the foundation of such documents:

55. All of the documents set forth in paragraph 54 have been properly certified by the parties to be as true and correct copies of the original(s) and have been admitted as evidence in this case.

56. The parties have also waived all objections to the introduction and receipt of the contents of their written stipulations and they have also been admitted into evidence in this case.

II. PLAINTIFFS’ CONTENTIONS

The Plaintiffs contend that the Defendants have no right to unilaterally “revoke” the recorded Declaration or to declare it to be “null and void” as to the properties which they purchased in November of 2005. Moreover, the Plaintiffs contend that Nations Development Corporation had no right to assign its interests to the Kokenges and Clampitt-Hersch. Regardless of whether the developer made a valid assignment, however, the Plaintiffs contend that the construction of a multi-family dwelling (4-plex) is a material violation of the Declaration and would destroy the character of the development. Thus, the Plaintiffs ask the Court enter an injunction prohibiting the construction of a multi-family dwelling (4-plex) in the North Country Villas Subdivision and requiring that the Defendants follow the terms of the Declaration.

III. DEFENDANTS’ CONTENTIONS

The Defendants contend that Nations Development Corporation had a right to assign its interest in the Declaration to the Kokenges and Clampitt-Hersh. Moreover, the Defendants contend that the right to “amend” the recorded Declaration includes the right to “revoke” or to declare it to be “null and void” as to the lots which were purchased by the Kokenges and Clampitt-Hersh in November of 2005. The Defendants also contend that the Plaintiffs had no legal basis to rely upon any representations which were made to them by the developer since the right to “amend” was reserved in the Declaration.

IV. ANALYSIS AND CONCLUSION OF LAW

A. The Standard of Review.

“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.2d 402 (2000), (quoting Bergstrom v. Noah, 266 Kan. 847, 974 P.2d 531 (1999)). The party opposing summary judgment may not rely on mere allegations or contentions. Rather, when opposing a motion for summary judgment, a party must come forward with evidence to establish that there truly is a genuine issue of material fact. Mitzner v. Kan. Dept of Social and Rehab. Services, 257 Kan. 258, 260, 891 P.2d 435 (1995). In reviewing the facts, Kansas courts are required to resolve all inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. State ex rel Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005); and, Bacon v. Mercy Hospital of Ft. Scott, 243 Kan. 303, 306, 756 P.2d 416 (1988).

B. Interpretation of the Declaration is a Question of Law.

In this case, the material facts are not in dispute. The Plaintiffs clearly purchased the real property in question subject to the “Declaration of Covenants, Restrictions and Dedication of Easements” (the “Declaration”), which was recorded with the Shawnee County Register of Deeds on February 12, 2001, in Volume 3473, Pages 284-297. Likewise, Defendants Clampitt-Hersh and the Kokenges also purchased their lots subject to the recorded Declaration. Furthermore, it is uncontroverted that Clampitt-Hersh and the Kokenges subsequently attempted to “revoke” the recorded Declaration as to the lots which they purchased from Nations Development Corporation.

“The fundamental rule in construing the effect of written instruments is that the intent and purpose be determined from an examination of the entire instrument or from its four corners.” Heyen v. Harnett, 235 Kan. 117, 122, 679 P.2d 1152 (1984); and, Shepard, Executrix v. John Hancock Mutual Life Ins. Co.,189 Kan. 125, 129, 368 P.2d 19 (1962). When the language of an instrument is unambiguous, courts are not to use parole evidence for interpretation. Stone v. U.S.D. 222, 278 Kan. 166, 180, 91 P.3d 1194 (2004). “Where a written instrument is ambiguous, all surrounding facts and circumstances attendant upon its execution may be considered in order to ascertain and carry out the intention of the parties.” Heyen v. Harnett, 235 Kan. at 122, (citing Siegel v. Hackler, Administrator, 181 Kan. 316, 310 P.2d 914 (1957)).

“Whether an ambiguity exists in a written instrument is a question of law to be decided by the court.” Amoco Production Co. v. Wilson, 266 Kan. 1084, 1088, 976 P.2d 941 (1999), (citing Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 508 P.2d 889 (1973)). Moreover, a written instrument is only ambiguous “when words used to express the meaning and intention of the parties are insufficient” and “may be understood to reach two or more possible meanings.” Amoco, 266 Kan. at 1088, (citing Harness v. Safeway Stores, 235 Kan. 226, 678 P.2d 625 (1984).) “The language of the instrument must be given its plain and ordinary meaning without resort to further rules of construction.” Corness v. Jeppersen, 238 Kan. 110, 116, 708 P.2d 515 (1985).

C. The Recorded Declaration.

The Declaration for the North Country Villas Subdivision was signed by Charles Nations, as President of Nations Development Corporation, on February 8, 2001. Four days later, on February 12, 2001, the Declaration was properly recorded with the Register of Deeds for Shawnee County, Kansas, in Volume 3473, Pages 284 - 297. Pursuant to K.S.A. 58-2223, the recording of the Declaration gave “notice to the world” as of the date it was recorded with the Shawnee County Register of Deeds. Schlup v. Bourdon, 33 Kan. App. 2d 564, 568, 105 P.3d 720 (2005). Although the interpretation of the terms of the Declaration relating to revocation and/or amendment is in dispute, none of the parties question the validity of the instrument or the fact that it was properly recorded over four and a half years prior to the purchase of property in the development by Defendants Clampitt-Hersh and the Kokenges.

A review of the Declaration in its entirety reveals that the property subject to the “Covenants, Restrictions and Dedication of Easements” is clearly identified in the Preamble. Specifically, the Preamble states that Nations Development Corporation intended “to create a residential community of single-family detached and single-family attached townhouse units” which were to be “subject. . . to the provisions of this Declaration. . . .” (Emphasis added) Moreover, the Preamble, states that the Declaration is intended to be “for the benefit of Declarant, its successors, assigns and its future grantees” in order “to protect the value and desirability of this townhome project known as North Country Villas. . . .” (Emphasis added.) In addition, the Preamble states that the development is to be subject “to the provisions of the Kansas Townhouse Ownership Act, K.S.A. 58-3701, et seq.” Finally, the Preamble provides that the “easements, covenants, restrictions and conditions shall run with the real property and shall be binding upon all parties having acquired any right, title, and interest in the real property or part thereof and shall inure to the benefit of each owner thereof.” (Emphasis added.)

Article I of the Declaration sets forth definitions of certain terms used in the document. The term “Association” is defined to mean the “North Country Villas Owners Association, Inc.” The term “Lot” is defined to mean “the real estate on which is located one (1) townhome unit.” (Emphasis added) Likewise, the term “Villa Unit” is defined to mean “one (1) single-family townhome residential unit which may be joined together with not more than one (1) additional single-family townhome residence by a common wall or walls, and/or roof and/or foundation.” (Emphasis added.) In addition, the term “Owner” is defined to mean “ the record owner, whether one (1) or more persons of the fee simple title to a lot and villa unit.” Finally, the term “Declarant” is defined to mean: “Nations Development Corp., its successors, heirs and assigns.”

Article Two contains a “Description of Submitted Land” which is “subject to this Declaration as of the Date of this Declaration. . . .” Article Three sets forth a “Description of Common Expenses and the Method by Which Such Expenses May Be Incurred and Charged to Villa Unit Owners.” It also contains a list of the items for which the “Fees or Charges Levied” may be used by the Association. Furthermore, Article Three sets forth the “Duties of the Board of Directors with Respect to Fees or Charges” and the “Uniform Rate of Fees or Charges.”

Article Four sets forth the “Lien Rights of the Association for Non-paid Common Expenses;” the Effect of Nonpayment of Fees or Charges;” and, the “Remedies of the Association.” Moreover, Article Five sets forth certain “Insurance” requirements and Article Six sets forth certain “Easements Created for the Benefit of the Association of all Villa Unit Owners.” Article Seven, which is entitled “Use Restrictions,” provides that “Each villa unit . . . shall be used solely for a private residence, and no commercial use shall be made of the same or any portion thereof. . . .” (Emphasis added.) In addition, Article Seven contains several other “Use Restrictions” and, Article Eight relates to “Party Walls and Easements for Encroachments.”

Article Nine which will be discussed in more detail below, is entitled “Amendment of Declaration.” Section One of Article Nine states that the Declaration’s “covenants, conditions and restrictions. . . shall run with and bind the real estate. . . and shall inure to the benefit of and be enforceable by the Association, or the owner of any villa unit . . . their respective legal representatives, heirs, successors and assigns, for a term of thirty (30) years from the date that the Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by a majority of the then owners of the villa units has been recorded, agreeing to abolish said covenants. . . in whole or in part. . . .” (Emphasis added.) Section Two of Article Nine states: “Until such time as the first villa units is sold by Declarant, Declarant, at its sole discretion, may abolish said covenants, conditions and restrictions or change them in whole or in part.” (Emphasis added.) Section Three of Article Nine sets forth the rights of the “Owners” to “amend” the recorded Declaration. (Emphasis added.) Moreover, Section Four of Article Nine provides: “The Class B owners may amend at anytime to the lands owned by Declarant.” (Emphasis added.)

Article Ten of the Declaration sets forth “General Provisions” relating to “Enforcement, Severability and Notices.” Specifically, Article Ten provides: “Enforcement of these covenants and restrictions shall be by a proceeding at law or equity against any person or persons violating or attempting to violate any covenant, condition, or restriction, either to restrain violation or to recover damages against the land. . . .”(Emphasis added.) Article Eleven sets forth the rules governing the “Owners Association” and divides its membership into “two (2) classes” for the purpose of voting. Class A members are “all owners except Declarant” and the Declarant is granted all of the Class B memberships. In addition, Class B memberships are to be “equal the number of Class A memberships multiplied by four (4).” The Declarant is required to surrender its Class B memberships to the Association when all of the “lots have been sold; or Declarant voluntarily surrenders his Class B membership.”

Article Twelve of the Declaration governs “Management, Maintenance, Repairs, Alterations, and Improvements” on the property located in the North Country Villas development. Article Thirteen refers to the “Description of Villa Units” subject to the actual location of the units to “be established at the time of construction.” Finally, Article Fourteen of the Declaration sets forth a “Description for Common Areas and facilities.” Specifically, the common areas include: “All area within the description of the submitted land. . .but not including the area on which individual villa units are built.”

D. The terms of the recorded Declaration are Enforceable.

“The enforceability of restrictive covenants has its origin in common law and has long been recognized in Kansas. [Citation omitted.] Enforceability is based on the equitable principal of notice, whereby a person who takes land with notice of the restriction upon it will not be permitted to act in violation of that restriction. [Citation omitted.] Persons who take real property with notice of restrictive covenants will not be permitted to act in violation thereof, and may be enjoined in equity. [Citation omitted.]”

Schlup v. Bourdon, 33 Kan. App. 2d at 569, ( quoting Persimmon Hill First Homes Assn v. Lonsdale, 31 Kan. App. 2d 889, 892, 75 P.3d 278 (2003)).

In this case, it is clear that all of the parties had notice of the restrictive covenants contained in the recorded Declaration. Nations Development Corporation, by and through Charles Nation, had actual knowledge of the terms of the Declaration since he was the Declarant and developer of the North Country Villas Subdivision. Moreover, all of the Individual Plaintiffs, as well as Defendants Clampitt-Hersh and the Kokenges, purchased their lots “subject to” the covenants and restrictions set forth in the recorded Declaration. Thus, the Court finds that the restrictive covenants contained in the Declaration are enforceable as a matter of law.

E. Intent of Recorded Declaration.

The intent of the Declarant, Nations Development Corporation, is clearly expressed in the Preamble of the Declaration. As indicated above, the Declarant specifically intended “to create a residential community of single-family detached and single-family attached townhome units.”(Emphasis added.) Moreover, Nations Development Corporation intended to place “certain covenants, conditions, restrictions, easements, charges and liens” on the real estate within the residential community “ for the benefit of Declarant, its successors, assigns, and its future grantees to protect the value and desirability of this townhome project known as North Country Villas . . . .” (Emphasis added.) Likewise, the Declaration was intended to “run with the real property and shall be binding upon all parties having acquired any right, title, and interest in the real property or part thereof and shall inure to the benefit of each owner thereof.” (Emphasis added.)

Although it is not necessary to look outside the clear and unambiguous language of the Declaration itself, it should be noted that the intent expressed on the face of the recorded document is also consistent with the exhibits which have been presented to this Court. In particular, the intent expressed in the recorded Declaration is consistent with the marketing materials used by Nations Development Corporation and/or its agents to promote the sale of lots and/or units in the North Country Villas Subdivision. Furthermore, the expressed intent is consistent with the Affidavit of Charles Nations, President of Nations Development Corporation, which was signed under oath on April 24, 2006.

In his Affidavit, Mr. Nations candidly admits: “At the time Nations Development Corporation began the development of North Country Villas Subdivision, it was my intent that only villas would be constructed in the Subdivision.” (Emphasis added.) Mr. Nations further states: “I always intended to build villas on the lots but because of financial issues, I determined that Nations Development Corporation needed to sell a number of the undeveloped lots.” (Emphasis added.) It is important to remember that Mr. Nations, in his capacity as President of Nations Development Corporation, was the Declarant who defined the term “Villa Unit” to mean “one (1) single-family townhome residential unit which may be joined together with not more than one (1) additional single-family townhome residence. . . .” Thus, it is clear that at the time the Declaration was recorded, the intent and purpose of the recorded Declaration was to preserve the North Country Villas Subdivision as a residential development composed of one single family dwelling on each lot.

F. The Declaration Apply to All Property Owners.

Restrictive Covenants perform an important function in the orderly development of real estate in Kansas. “[T]he violation of a restrictive covenant that is part of the development scheme affects the grantor and all other grantees, causing irreparable harm to the value of their respective property interests, because such restrictive covenant was part of the valuable contract consideration given and relied upon in the conveyance of the land.” (Emphasis added.) Persimmon Hill v. Lansdale, 31 Kan. App. 2d at 895, (quoting Focus Entertainment v. Partridge Greene, 253 Ga. App. 121, 127-28, 558 S.E. 2d 440 (2001)). Thus, just as “no man is an island,” an attempt by one owner to escape from the terms of a restrictive covenant as to his or her property in a planned residential community, has a negative impact on the overall development scheme as well as on the property owned by others in the subdivision.

The Court finds that Defendants Clampitt-Hersh and the Kokenges had adequate notice of the terms of the Declaration prior to purchasing the property in November of 2005 and that they purchased their property in the North Country Villa Subdivision “subject to” the covenants and restrictions of record. The recorded Declaration must be interpreted for the mutual benefit and protection of all the property owners in the development rather than for the benefit of particular person, entity or group. Thus, the Court finds that the obligations and benefits under the recorded Declaration are to be applied to all those who own property within the North Country Villas Subdivision.

G. Right to Amend or Revoke the Recorded Declaration.

For the purposes of this Memorandum Decision and Order, the Court will assume that the original Declarant had a right to assign whatever rights he held under the terms of the recorded Declaration at the time he sold property to Defendants Clampitt-Hersh and the Kokenges in November of 2005. However, the Court notes that the Plaintiffs have made a good faith argument that at least some of the rights which were reserved by the Declarant were “personal” in nature. See Fox Lake Hills Property Owners Ass’n v. Fox Lake Hills, Inc., 120 Ill.App.2d 139, 145, 256 N.E.2d 496 (1970), (“Generally, such reserved powers are construed as personal covenants which can be exercised only by the one who imposes the restriction, particularly when the power may be exercised by its terms without the consent of property owners.”). Regardless, it is not necessary for the Court to decide this issue at this time since a person receiving an assignment can take no greater rights than those possessed by the person making the assignment.

In this case, the Declarant no longer held the right to unilaterally “revoke” or “abolish” the covenants and restrictions set forth in the recorded Declaration after he had sold the first lot in the North Country Villas Subdivision. As indicated above, Section I of Article Nine states: “The covenants, conditions and restrictions of this Declaration shall run with and bind the real estate subject to the Declaration, and shall inure to the benefit of an be enforceable by the Association, or the owner of any villa unit, subject to this Declaration, their respective legal representatives, heirs, successors and assigns.” Section 1 of Article Nine also provides that the Declaration shall have an initial “term of thirty (30) years from the date that this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by a majority of the then owners of the villa units has been recorded, agreeing to abolish said covenants, conditions, and restrictions in whole or in part . . . .” Similarly, Section 2 of Article Nine provided that “Until such time as the first villa unit is sold by Declarant, Declarant as its sole discretion may abolish said covenants, conditions and restrictions or change them in whole or in part.”

It is important to recognize that Sections 1 and 2 of Article Nine are the only provisions in the Declaration which allowed for the covenants and restrictions in the development to be abolished or revoked, either in whole or in part, after the document was properly recorded. In contrast, Sections 3 and 4 of Article Nine set forth the terms upon which the recorded Declaration could be amended. Section 3 of Article Nine provides that the Declaration may be “amended” by the “Owners” within “the first thirty (30) years” after it was recorded so long as the amendment is recorded in “an instrument signed and acknowledged by not less than seventy-five percent (75%) of the Class A members of the Association and by all Class B members if said Class B memberships are still outstanding.” Moreover, Section 4 provides: “Class B owners may amend at any time as to the lands owned by Declarant.” (Emphasis added.)

The word “amend” is defined in Black’s Law Dictionary (Fifth Edition - 1979) to mean: “To improve. To change for the better by removing defects or faults. To change, correct, revise.” Similarly, Ballentine’s Law Dictionary defines “amend” to mean: “To improve, to make better by change or modification.” In the New Oxford English Dictionary (1996), the word “amend” is defined to mean: “Correct errors in (the text of a document etc.); correct (a textual error); emend.” Likewise, the word “emend,” from which the modern word “amend” is derived, is defined by the New Oxford English Dictionary (1996) to mean: “Alter (a text) to remove errors and corruptions; gen. free from faults, correct, rectify.”

On the other hand, Black’s Law Dictionary defines the word “abolish” to mean: “To do away with wholly; to annul; to repeal; to rescind; to abrogate; to dispense with. Put an end to [Citation omitted.] Imports absolute destruction having its root in the Latin word ‘aborlere,’ meaning to destroy utterly.” Ballentine’s Law Dictionary (Lexis 2006) defines “abolish” to mean: “To repeal; to recall; to revoke; to cancel and eliminate entirely.” Likewise, the New Oxford English Dictionary (1996) defines “abolish” to mean: “Put an end to, annul, demolish, destroy. . . .”

In this case Defendants Clampitt-Hersh and the Kokenges have attempted to justify the filing of their “Revocation of Declarations” as to the lots which they purchased in November of 2005, by arguing that “the right to amend the Declaration as to land owned by Declarant” includes the right to “revoke” the recorded Declaration. However, as one can see from the definitions taken from both regular and legal dictionaries, the word “amend is not synonymous with the word “revoke.” Rather, the word “revoke” is synonymous with the word “abolish” - a power which the Declarant no longer possessed in November of 2005.

Black’s Law Dictionary (Fifth Edition - 1979) defines the word “revoke” to mean: “To annul or make void by recalling or taking back; to cancel, rescind, repeal or reverse.” Similarly, Ballentine’s Law Dictionary (Lexis 2006) defines “revoke” to mean: “To withdraw, cancel, or annul. To set at nought.” Moreover, the New Oxford English Dictionary defines “revoke” to mean: “Annul, repeal, cancel, (a decree, promise, etc.); rescind.” Thus, the Court finds that the right to “revoke” or “abolish” is not included in the “right to amend” based on the common uses of such terms.

In response to a request from the Court during oral arguments for any cases in which the right to “amend” had been found to include a right of revocation, counsel for the Defendants sent a letter dated May 1, 2006, in which he identifies two cases. The cases cited by the Defendants are Stahler v. Sevinor, 324 Mass. 18, 84 N.E.2d 447 (1949); and, In re Estate of Flake, 71 P.3d 589 (Utah 2003). Based on a review of these decisions, both of which involve trust instruments, the Court does not find

them to be particularly helpful to the interpretation of the plain and unambiguous language contained in the recorded Declaration which is the subject of the present litigation.

Moreover, in the case of In re Estate of Sanders, 261 Kan. 176, 929 P.2d 153 (1996), the Kansas Supreme Court looked to Section 330 of the Restatement (Second) of Trusts for guidance. This Restatement section provides: “The settlor has power to revoke the trust if and to the extent that by the terms of the trust he reserved such a power . . . the settlor cannot revoke the trust if by the terms of the trust he did not reserve a power of revocation.” (Emphasis added.) Thus, even if the Court were to apply the law of Trusts to this case by analogy, the result would be the same since the Declarant did not reserve the power of unilateral revocation by the terms of the recorded Declaration after he sold the first lot in the North Country Villa subdivision.

The parties should also not lose sight of the fact that the Declaration in this case was specifically drafted and submitted pursuant to the Kansas Townhouse Ownership Act, K.S.A. 58-3701, et seq. The term “Declaration” is defined in K.S.A. 58-3702(f) to mean the “covenants and restrictions which run with the land and create certain land use restrictions, maintenance assessments which become liens against the real estates and easements in favor of all townhouse unit owners and the association.” (Emphasis added.) Moreover, K.S.A. 58-3705 requires that all of the

owners “shall comply with all the covenants, conditions and restrictions set forth or referred to in the declaration and all amendments thereto.”(Emphasis added.)

Although the Kansas Townhouse Ownership Act does not specifically mention the right to abolish or revoke a properly recorded Declaration, K.S.A. 58-3709 mandates that “No . . . owner may exempt himself or herself from liability for his or her contribution towards the common expenses or the use or enjoyment of any of the common areas and facilities, or by abandonment of his or her townhouse unit.” (Emphasis added.) Notwithstanding, Barbara Hersh, Gayle Clampitt and Randy Kokenge sent a letter to the other property owners on December 28, 2005, which stated that “the properties we purchased are exempt from the North Country Villas Homeowners Association and their restrictions . . . .” (Emphasis added.) As such, it appears that Defendants Clampitt-Hersh and the Kokenges attempted to do what the Kansas Legislature sought to prevent when enacting the Kansas Townhouse Ownership Act.

H. The Restatement of Property (Third).

It is important to note that the Court’s decision is this case is consistent not only with Kansas case law but it is also consistent with the Restatement of Property (Third). Restatement of the Law, Third, Property (Servitudes), §6.21 provides: “A developer may not exercise a power to amend or modify the declaration in a way that would materially change the character of the development or the burdens on the existing community members unless the declaration fairly apprises purchasers that the power could be used for the kind of change proposed.” The rationale for Section 6.21 is based on the fact that a development’s “character,” as represented “by the existing housing and promotional materials, is frequently one of the most important considerations for prospective purchasers. People generally believe that a developer will continue to build housing of a similar quality and character, and anticipate that the value of the property they buy will not be undercut by future construction in the project.”

The language of Section 6.21 is consistent with Kansas law on restrictive covenants which provides: “Enforceability is based on the equitable principal of notice, whereby a person who takes land with notice of a restriction upon it will not be permitted to act in violation of that restriction.” Persimmon Hill First Homes Assn v. Lonsdale, 31 Kan. App. 2d at Syl. 1. As the Comments to Section 6.21 explain, if a provision to amend “is couched in general terms, it is unlikely to alert purchasers to the true risks involved in their purchase. To protect their legitimate expectations, developers are prevented from exercising such powers to make material changes in the character of the development or the burdens on existing owners unless the declaration clearly gives noticed that it can be exercised with that effect.”

I. Authorities From Other Jurisdictions.

The Court’s decision in this case is also consistent with numerous cases from across the United States. Perhaps the Florida Court of Appeals explained the issue presented best in the case of Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d 665, 666 (Fla.App. 1974), when it stated:

“In a sense, there is an inherent inconsistency between an elaborate set of restrictive covenants designed to provide for a general scheme or plan of development (generally considered to be for the benefit of the respective grantees), and a clause therein whereby the grantor reserves to itself the power at any time in its sole discretion to change or even arbitrarily abandon any such general scheme or plan of development (a power which is solely for the benefit of the grantor). When such occurs, as it has in this case, rules of construction require that the clauses which are apparently inconsistent with or repugnant to each other be given such interpretation and construction as will reconcile them, if possible.”

See also Lakemoor Community Club, Inc. v. R.D. Swanson, 24 Wash.App. 10, 15, 600 P.2d 1022 (1979).

Similarly, in Appel v. Presley Companies, 111 N.M. 464, 466, 806 P.2d 1054 (1991), (quoting Montoya v. Barreras, 81 N.M. 749, 751, 473 P.2d 363 (1970)), the Supreme Court of New Mexico held:

“To permit individual lots within an area to be relieved of the burden of such covenants, in the absence of a clear expression in the instrument so providing, would destroy the right to rely on restrictive covenants which have traditionally been upheld by our law of real property.”

See also Kauffman v. Roling, 851 S.W.2d 789, 792 (Mo. App. W.D. 1993) (“Those

who purchase lots in a subdivision subject to restrictive covenants do so upon the expectation of a benefit as well as the obvious burden or obligation of compliance.”)

It has also been held that “cases involving the interpretation of restrictive covenants must be decided on a case-by-case basis since they ‛present such a wide spectrum of differing circumstances.’” DeWolf v. Usher Cove Corp., 721 F.Supp 1518, 1528 (D.R.I. 1989)( quoting Hanley v. Missischi, 111 R.I. 233, 238, 302 A.2d 79 (1973)). In reviewing each case, the Texas Court of Appeals adopted the following test in Hanchett v. East Sunnyside Civic League, 696 S.W.2d 613, 615 (Tex.Ct.App. 1985), the Texas Court of Appeals:

“In order for a subsequent instrument to amend the original restrictive covenants governing a subdivision, three conditions must be met. First, the instrument creating the original restrictions must establish both the right to amend such restrictions and the method of amendment. [Citations omitted.] Second, the right to amend such restrictions implies only those changes contemplating a correction, improvement, or reformation of the agreement rather than a complete destruction of it. [Citations omitted.] Third, the amendment to the restrictions may not be illegal or against public policy. [Citations omitted.]”

Furthermore, in City of Pasadena v. Gennedy, 125 S.W.3d 687, 698 (Tex. Ct.

App. 2003), it was stated:

“A developer generally has the unilateral right to impose on its subdivision, in the first instance, any restrictions that it chooses, to alter or to cancel restrictions, or to abrogate restrictions entirely, so long as no subdivision lots have been sold.”

See also Duane v. Shenandoah Homeowners Ass’n, Inc., 12 P.2d 340. 344 (Co. Ct. App. 2000) (“However, if the developer sells one or more lots prior to the attempted revocation, the revocation is invalid because those who purchased in the subdivision previously did so upon the expectation of the benefit of the covenants.”); and, Rossman v. Seasons at Tiara Rado Associates, 943 P.2d 34, 38 (Co.Ct.App. 1996). (“A Declarant “reasonably exercise the right to amend if the grantor does not destroy

the general scheme or plan of development for the property.”)

In the present case, the Individual Plaintiffs had legitimate expectations based on the recorded Declaration filed by Nations Development Corporation. To permit the Defendants to unilaterally revoke or exempt themselves from the restrictions contained in the recorded Declaration would seriously damage, if not destroy, the integrity of the North Country Villas Subdivision. Moreover, it would inappropriately elevate the economic self-interests of the Defendants over the legitimate interests and expectations of the other lot owners who purchased their property in reliance upon the restrictive covenants set forth in the recorded Declaration. Such a result would be unjust and unconscionable as a matter of law.

Unfortunately, Mr. Nations had financial difficulties which caused him to sell several of his remaining lots to Defendants Clampitt-Hersh and the Kokenges. A review of the warranty deeds conveying the lots clearly reveals that they also purchased the lots “subject to the easements, restrictions and reservations of record. . . .” Thus, justice requires as a matter of law that the Court find that the Defendants do not have the right to unilaterally revoke the Declarations or to amend them as to the lots which they purchased in such a manner which would destroy the general scheme or plan of development.

J. The Entry of a Permanent Injunction is Appropriate in this Case.

In Kansas, there are four (4) factors that must be shown to obtain injunctive relief: 1) there is a reasonable probability of irreparable future harm; 2) an action at law will not provide an adequate remedy; 3) the threatened injury to the movant outweighs whatever damage the injunction may cause to the opposing party; and 4) the injunction would not be adverse to the public interest. State ex rel. Board of Healing Arts v. Thomas, 33 Kan. App. 2d 73, 81-82, 97 P.3d 512 (2004). Irreparable harm automatically occurs as a matter of law arising out of a violation of a covenant running with the land. See Persimmon Hill First Homes. Ass’n v. Lonsdale, 31 Kan. App. 2d at 895-896.

Based on a review of the record in this case, the Court finds as a matter of law that there is a reasonable probability of irreparable harm to the Plaintiffs and to other property owners in the North Country Villas Subdivision should the Defendants be permitted to continue to violate the terms of the Declaration. The Court further finds that there is not an adequate remedy at law to protect the Plaintiffs and the other property owners for the Defendants’ failure to comply with the Declarations relating to subdivision of the property and/or construction on the property which does not meet the requirements set forth in the Declaration. Moreover, the Court finds that the threatened injury to the Plaintiffs and to the other property owners outweighs whatever damage a Permanent Injunction would cause to the Defendants since they knowingly purchased the property with notice of the Declarations. Finally, the Court finds that an entry of an Injunction would promote the public interest since restrictive covenants serve to benefit the development of real property in Kansas.

CONCLUSION

From a review of the unambiguous terms of the recorded Declaration in its entirety, it is evident that the Declarant did not specifically reserve the right to revoke, rescind, annul, abolish or cancel the restrictive covenants after the first lot was sold. A reading of the Declaration as a whole leads to the conclusion that the Declarant clearly intended that the restrictions relating to single family dwellings was central to the future of the development of the North Country Villas Subdivision. Thus, the Court finds that all of the parties to this case are bound to act consistently with the overall scheme and plan for the development as set forth in the recorded Declaration.

Therefore, for the reasons set forth in this Memorandum Decision and Order, the Court finds as follows:

1. The “Declaration of Covenants, Restrictions, and Dedication of Easement of North Country Villas” which was recorded with the Shawnee County Register of Deeds on February 12, 2001, in Volume 3473, Pages 284-297, is hereby enforced as to all of the owners of property in the North Country Villas residential community as a matter of both law and equity.

2. The Defendants have no right to “revoke” or declare the recorded Declaration “null and void” as to any of the real property within the North County Villas residential community. Moreover, the Defendants do not have a right to amend the terms of the Declaration in such a way as to materially interfere or destroy the intent and/or scheme of the development.

3. The Plaintiffs are hereby granted summary judgment as a matter of law and the Defendants’ summary judgment motion is hereby denied.

4. A Mandatory Injunction is hereby entered against the Defendants pursuant to K.S.A. 60-901 et seq., requiring them to abide by the terms of the Declaration and restraining them from violating the terms of the Declaration in the future.

5. The Court hereby restrains and enjoins any party to this action from constructing or continuing to construct any structure other than “one (1) single-family townhome residential unit” on any lot within the North Country Villas residential community “which may be joined together with not more than one (1) additional single-family townhome residence by a common wall, or walls, and/or roof and/or foundation.”

6. The Court hereby reserves jurisdiction over this matter in order to decide the specific terms which should be included in the Mandatory Injunction.

7. The parties and counsel are hereby directed to make a good faith attempt to resolve the language to be included in the Mandatory Injunction. To assist the parties in doing so, the Court hereby orders that they participate in a Settlement Conference or Mediation within thirty (30) days from the date of this Memorandum Decision and Order. Counsel for the parties shall confer within seven (7) business days from the date of this Memorandum Decision and Order in an attempt to mutually agree upon a Judge, Senior Judge, Retired Judge or Attorney to conduct the Settlement Conference or Mediation.

IT IS SO ORDERED.

Entered on this day ______ day of May, 2006.

David E. Bruns

District Court Judge

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the day of , 2006, she served a true and correct copy of the above and foregoing pleading by United States mail, first class postage prepaid.

Randall J. Forbes

555 S. Kansas Ave. Ste. 303

PO Box 639

Topeka, KS 66601-0639

Vernon L Jarboe

Attorney at Law

534 Kansas Ave., Ste. 1000

Topeka, KS 66603

Yolanda N. Anderson

Administrative Assistant