Term
| Requirements to Enforce Real Covenants in Equity |
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Definition
1. The INTENT that the benefit and or burden of the covenant run to successors of the original parties.
2. NOTICE on the part of purchasers of the original promisor.
3. That the covenant TOUCH and CONCERN land. |
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Term
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Definition
1. MERGER on the basis of unity of ownership of the benefit and burden in one person.
2. Formal RELEASE that is written and recorded.
3. ACQUIESENCE arising when the plaintiff has failed to enforce the servitude against other breaches and then seeks to enforce the servitude against the defendant.
4. ABANDONMENT which resembles acquiescence except that it makes the servitude unenforceable as to the entire parcel rather than the immediate plaintiff involved.
5. UNCLEAN HANDS, an equitable doctrine that says the a court will refuse to enjoin a violation of servitude that P previously violated.
6. LACHES, an equitable doctrine that involves an unreasonable delay by P to enforce a servitude against D causing prejudice to D.
7. ESTOPPEL if D has relied upon P's conduct making it inequitable to allow P to enforce the servitude. |
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Term
| Reasons courts are reluctant to enforce affirmative covenants against successors (4) |
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Definition
1. Requires continuing judicial supervision.
2. May impose a large personal liability on a successor.
3. Affirmative covenants that are unlimited in time resembles a feudal service or perpetual rent.
4. Some courts view as a clog on titles. |
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Term
| Reasons to hold a covenant invalid from its inception. |
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Definition
| It is "illegal or unconstitutional or against public policy" - it in itself infringes on a constitutional right or is spiteful/capricious. |
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Term
| Restatement special rule for terminating covenants in gross. |
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Definition
| If it has become impossible to locate the beneficiaries of such covenants, a court may modify or terminate the servitude with the consent of those beneficiaries who can be located, subject to provisions for protections for those who cannot be located. |
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Term
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Definition
| Covenants must be created by a written instrument signed by the covenantor; they are interests in land within the meaning of the Statute of Frauds. If the deed is signed by the grantor only and it contains a promise by the grantee, the promise is enforceable against the grantee. By accepting the deed, the grantee is bound by it. A real covenant CANNOT arise by estoppel, implication, or prescription |
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Term
| Sanborn v. McLean (Michigan 1962) |
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Definition
P’s say that D’s plans to erect a gas station on their lot constitute a nuisance per se, is in violation of zoning laws, and that D’s lot is subject to a reciprocal negative easement barring a use so detrimental to the enjoyment and value of its neighbors. D’s were enjoined from carrying out their plan and now appeal. D’s says no restrictions appear in the chain of title and they purchased their lot without notice of any reciprocal negative easement and deny that the planned use is a nuisance.
• Case can be decided under the rule of reciprocal negative easement.
• Rule: A RNE occurs when the owner of two or more lots sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and, during the period of restraint, the owner of the lot or lots retained can do nothing forbidden to the owner of the lot sold. Reciprocal negative easements are never retroactive. They must start with a common owner.
• There was a RNE on D’s lot (86), but enforcement is dependent on whether or not D’s knew of the easement when they purchased the lot.
• D’s lot and P’s lot had a common owner, in fact they owned a lot of the land in the neighborhood and whenever they transferred it they made mention of their overall plan to have the area remain a residential area. Everyone who owns these lots has conformed to this purpose except for the defendants.
• D must have seen this and therefore had a duty to inquire about the deed and any restrictions thereof.
• Judgment affirmed, D’s cannot build a gas station.
Notes say that other cases have also held that restrictions on other lots from the same seller give enough notice to buyer of the restriction. However, some states like California take the Statute of Frauds more seriously and require a written instrument on the burdened lot itself. |
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Term
| WESTERN LAND CO. V. TRUSKOLASKI (NEVADA 1972) |
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Definition
Western Land Co. had owned lots of land near Reno; they sold them with the restriction that they be used for residential purposes only. P’s in original action owned one of the lots and they brought suit when WLC decided to build a shopping center on one of the lots. DC says covenants are still enforceable and WLC can’t build the mall.
• There have been changes to the area, which WLC cites to say that covenants are no longer enforceable (more traffic and commercial development) because it would be inequitable.)
• But, the changes haven’t affected the single family residential character of the neighborhood.
• West Alameda Heights H. Assn. v. Board of Co. Comrs.: “As long as the original purpose of the covenants can still be accomplished and substantial benefit will inure to the restricted area by their enforcement, the covenants stand even though the subject property has a greater value if used for other purposes.” 885
• Appellant did not carry their burden in showing that the area was no longer suitable for residential use.
• Appellants cite other arguments:
o Zoning resolution (cannot invalidate restrictive covenants.)
o Higher valued use (doesn’t matter as long as the original purposes can be accomplished plus value accrues by enforcing restrictive covenant.)
o Abandonment (two houses built on smaller lots, court says it’s not enough.)
o Waiver - Two violations of covenant (court says they were a long time ago and none are going on right now; ones in the past were too sporadic to extent to all the property owners.)
o “In order for community violations to constitute an abandonment, they must be so general as to frustrate the original purpose of the agreement.” 887 |
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Term
| RICK V. WEST (NY SC WESTCHESTER COUNTY 1962) |
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Definition
Rick owned land and subdivided with restrictions to be residential. West bought one of these. After Rick was unable to sell more lots he transferred to other Ricks who tried to have a hospital built there, but West refused to consent to the release of the covenant. Court refuses to hold against West.
• Rick owned the land free of restrictions and he chose to put these restrictions on it.
• West relied on the covenant and has a right to continue to rely on it.
• Cardozo opinion: restrictive covenants in respect of land will be enforced by preventive remedies while the violation is still in prospect. Reliefe is not withheld because the money damage is unsubstantial or even none at all. The choice [to enforce the covenant] is [for the owner of the lot] only.
• Restatement does not allow for consideration of pecuniary damages here. |
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Term
| POCONO SPRINGS CIVIC ASSOCIATION, INC. V. MACKENZIE (PENNSYLVANIA 1995) |
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Definition
The MacKenzies had purchased a lot in the Pocono Springs development and later, when they tried to sell, found that it was unsuitable for an on-lot sewage system. They tried to give the lot back to the association but they refused to take it and told them they had to keep paying owner’s association fees. They say their intent to abandon, manifested in many different ways (written instruments, refusal to take mail, never going onto the property, etc.) constituted an abandonment and they were no longer obligated to pay.
• Court says intent is not enough because the MacKenzies still hold perfect title in fee simple on the record books.
• Seems strange that this opinion defines a standard for abandonment that centers on intent and says that even if ownership has not yet vested the title in another, the abandonment stands…
• Also, the MacKenzies made a huge effort to sell the land but were unable to because of the condition that they were unaware of when they bought it.
• Was it their responsibility to check out the land before they bought it, or was it ok for them to assume that since the developer sold it to them that it was ok? |
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Term
| Define covenant and real covenant |
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Definition
Covenant: a promise to do or not to do something.
Real covenant: a promise relating to the use of land.
-Runs with the land at law, each successor can enforce or is burdened by the covenant. Enforceable only by monetary damages. |
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Term
| Remedies for breach of covenant or real covenant? |
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Definition
| A suit for damages at law or an injunction filed in equity. |
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Term
| Requirements for the burden to run with the land (to assignees) |
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Definition
1. The parties so INTEND.
2. There is PRIVITY OF ESTATE.
3. The covenant TOUCHES AND CONCERNS the burdened land.
4. The assignee has NOTICE of the covenant before buying. |
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Term
| Requirements for the benefit to run with the land (to assignees.) |
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Definition
1. The parties so INTEND.
2. There is some form of PRIVITY OF ESTATE.
3. The covenant TOUCHES AND CONCERNS the benefitted land. |
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Term
| Intention of the parties - how to find? |
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Definition
Usually found in the language of the deed or contract.
Rule in Spencer's Case (abolished in maj. of states): a covenant concerning a thing not in being will not bind assignees unless they are expressly mentioned. |
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Term
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Definition
Horizontal privity: The relationship that exists between the original promisor and promisee. Many states require HP for burden to run. Most do not require it for benefit to run.
Vertical privity: the relationship between the original covenanting party and the assignee. For burden to run, the assignee must succeed to the identical estate owned by the promisor. Benefit will run to assignees of the original OR lesser estate. |
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Term
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Definition
| The covenant must "touch and concern" the affected land. |
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Term
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Definition
| Covenant cannot be binding on someone who had no notice of it. |
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Term
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Definition
| A grant of an interest in land that allows someone to use another's land. |
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Term
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Definition
1. Express terms.
2. Unity of title/MERGER
3. Release.
4. Abandonment.
5. Alteration of dominant tenement.
6. End of necessity.
7. Destruction of servient tenement.
8. Prescription.
9. Change of conditions. |
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Term
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Definition
| The right to take part of the land or a product of the land of another. |
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Term
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Definition
| Permission to go onto another's land. |
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Term
| Real covenent/equitable servitude |
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Definition
| Promise to do or not to do something on the land or related to the land. |
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Term
| Creation of real covenant |
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Definition
| Writing is ALWAYS required - can be a deed where only grantor signs as long as grantee has notice. |
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Term
| Creation of equitable servitude |
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Definition
| Writing usually required. |
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