Tippecanoe Associates II, LLC v. Kimco Lafayette 671, Inc.
Indiana Court of Appeals
811 N.E.2d 438 (2004)
SES Development originally leased shopping-center space to Kroger under a restrictive covenant barring SES from leasing to competing grocery operators within a two-mile radius, and after the property was sold to Kimco (plaintiff) and the Kroger lease was assigned multiple times until Tippecanoe (defendant) held its rights (subleased to an appliance store, H.H. Gregg), Kimco sought a declaration that the covenant was unenforceable due to changed circumstances — the space no longer housed a grocery store, the current tenant (an appliance store) wouldn't be harmed by nearby grocery competition, and a major anchor tenant (Target) had vacated, leaving Kimco unable to attract new tenants besides a grocery operator, Schnucks. The trial court declared the covenant unenforceable, and Tippecanoe appealed.
Whether a restrictive covenant becomes unenforceable if the surrounding area changes in such a way that the original purpose of the covenant has been defeated.