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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana Court of Appeals has affirmed injunctive relief for several Kosciusko County homeowners when it found they had standing as successors to enforce a prior covenant preventing motorized racing on a local fairground.
In June 1989, nine Kosciusko County homeowners filed a complaint against the Kosciusko County Community Fair after a dispute arose regarding the operation of its automobile racetrack. As part of the original settlement with the homeowners, the fair executed a binding restrictive covenant between itself and the original homeowners and their successors and assigns. The agreement limited the fair’s use of the grandstand and racetrack facility for events, but excluded motorized racing.
The current homeowners then filed a complaint in May 2018 requesting injunctive relief against the fair, seeking to enforce the restrictive covenant and to prevent the fair from conducting motorized races on its property. The Kosciusko Superior Court found that one of the homeowners, Chris Cummins, had standing to seek to enforce the restrictive covenant and issued a preliminary injunction enforcing it, thus enjoining the fair from permitting motorized racing at the track.
On appeal, the fair argued the restrictive covenant did not extend to the current homeowners, whom the fair claimed lacked standing because none were original homeowners, successors or assigns listed in the covenant. Language in the covenant states that, “The foregoing shall constitute a covenant running with the Real Estate and shall be binding upon [the Fair] and [Original] Homeowners and all persons claiming under them. This covenant shall be enforceable by [Original] Homeowners and their successors and assigns.”
But the appellate court found that because Cummins had purchased land owned by original homeowner James Cummins, he was a successor in title to the real estate, creating vertical privity. It also found that the trial court did not err in granting the preliminary injunction, rejecting the fair’s arguments that the homeowners did not establish a monetary value of harm and would not have a reasonable likelihood of success at trial, that the fair would suffer more harm if the relief was granted than if denied, and that the public interest would be disserved if granted.
The case is Kosciusko County Community Fair, Inc. v. Mary Clemens, Merle Conner, Judith Conner, and Chris Cummins, 18A-PL-1319.
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