7) Covenants Flashcards
to enforce IRNS against homeowner, need (2)
1) evidence of common plan or scheme
2) notice to that homeowner
RC: elements: notice
1) actual 2) inquiry 3) constructive 4) NOTICE NOT REQUIRED FOR BENEFIT TO RUN W LAND JUST FOR BURDEN
Fontainebleau Hotel Corp v. 4525 Inc
F: D hotel building 14 story addition that will cast shadow over beach area of P hotel H: no right to free flow of light and air across adjoining land of neighbor (unless zoning)…
IRNE: who can sue to enforce?
–owners –HOA if says so in declaration –developer, IF retains parcels (restatement more realxed, anyone can)
unreasonable covenant: majority view (CL/W)
strong presumption of reasonability
F: HOA suing bank for nonpayment of assn fees which are to maintain common areas H: meets requirements to run w the land. T+C: may not have met old requirements re direct c to land, but this court: it gives them right of use and so appropriate for cost of ammenities to be borne by those who use them, AND privity: HOA can be party to privity even tho not itself owner of nearby land, bc the entity wsa developed by Ps to advance their common interests
Neponsit Property Owners Assn v. Emigrant Industrial Savings Bank
Factors that show common plan or scheme
1) presence of restrictions in all or most deeds to property in the area,
2) recorded plat showing restrictions, presence of restrictions in last deed,
3) observance by owners of similar development of their land and conformity to written restrictions,
4) language stating the covenatns are intended to run w the land,
5) recording of declaration sting intended to be mutually enforceable
RC elements: notice: constructive notice
deed research, must also search for other deeds from comon grantor around the same time
term/not enforce cov: laches
unexcused delay – cov has bene ignored or breached for substantial period fo time, and delay in enforcing prompted investment, so now would be unconscionable to enforce
RC/ES – SEPARATE analysis of…
benefit and burden (does each run w the land?)
Neponsit Property Owners Assn v. Emigrant Industrial Savings Bank
F: HOA suing bank for nonpayment of assn fees which are to maintain common areas H: meets requirements to run w the land. T+C: may not have met old requirements re direct c to land, but this court: it gives them right of use and so appropriate for cost of ammenities to be borne by those who use them, AND privity: HOA can be party to privity even tho not itself owner of nearby land, bc the entity wsa developed by Ps to advance their common interests
real covenants: elements: writing
1) SoF compliant 2) usu in deed or lease
do noncompete covenants T+C the land?
generally yes
remedies “liability rule”
damages
Woodide Village Condo Assn v. Jahren
F: D bought condo, declaration subsequently amended to substantial restrictions on leasing it H: court enforces bc legislative intent – condos are different and courts reluctant to interfere w the k
no covenants in gross (?)
msut concern THE LAND not something you come to do on my land
IRNS: ways to show common plan or scheme (7)
(not exactly req’d elements tho): –presence of restrictions in all or most deeds to property int eh area –recorded plat showing restrictions –presence of restrictions in last deed –observance by owners of similar development of land and conformity to written restrictions –language stating covenants are intended to run w th eland –recording of declaration showing that covenatns are nitended to be mutually enforceable, providing buyers notice of CCRS (IMPORANT) AND: NOTICE–REQUIRED
covenants in gross?
No – rule against covs in gross
simultaneous horizontal privity
old common law requirement
term/not enforce cov: acquiesence
benefitted estate has tolerated or failed to object to violations by owner of servient estate
equitable servitudes elements
all the same as RC, just dnn privity (iow): 1) writing 2) notice 3) intent 4) touch and concern
in privity
transferred title to each other
F: subdivision w restricted covenants re lakefront homes, othe rlarge sections dnh specified covenants an dlate rowner tried to build a marina there. H: it’s possible for the IRNE to intentionally onl apply to certain areas of the development
Evans v. Pollock
relaxed VP:
ok for grantor to retain some interest in land
covenants by implication?
rare (contrast: e.b.i) – can happen if seller fraudulently promises covenant and buyer detrimentally relies, use estoppel theory – extreme cases like forged deeds
term/not enforce cov: release
all parties affected by cov (burdened and benefitted) agree in writing to term the cov
term/not enforce cov: language i ninstrument
cov title itself sets time limit in cov, possibly w renewal option
F: build high rise hotel w sky bridge vs 16 feet of open space covenant (light, air) H: under state statute, cov should not be enforced–changes in ch/property and neighborhood, impede reasonable use of land for best suited purpose, public interest (taxes) N: MA statute vs CL doctrine – the statute is anti-enforcement
Blakely v. Gorin
strict VP
grantor retains NO interest in land (eg not someone w a life estate)
term/not enforce cov: merger
burdened and benefitted estates come under common ownership
HOAs: how governed
by the declaration itself –sometimes allows modification of rules by board, sometimes requires supermajority of votes
CC&Rs
conditions, covenants, and restrictions
limits on convenants: examples of possible reasons why (4)
1) public policy/reasonableness, 2) constitutional violations, discrimination under Fair Housing Act 3) restrictions on alienability 4) claims on unreasonable restraint on trade
IRNE: unrestricted lots owned by neighbors, contrast 2 cases
Sanborn v. McLean (NR): Ds want to build gas station behind house, covenants on 53/91 lots. Held: uniform nature of properties created inquiry notice, majority restricted, so, common plan, so, IRNE compare: Riley v. Bear Creek Planning Committee: Ps build snow tunnel, orally knew there’d be restrictiosn but weren’t written into plan yet and dn appear in their deed. CA courts: can only enforce if it is written into deed OR declaration recorded w restrictons BEFORE property sold
RC: elements: privity
–horizontal –vertical NOTE: HP not required for ben to run w the land, just burden
remedies: injunctive
declaration from court to eg stop building
Real covenants / equitable servitudes: def
commitments people make in reference to property that bind others and are intended to run w the land
F: condo owners has 3 cats inside, silent, clean, sues D HOA over no pets restriction H: reasonableness must be considered vis a vis EVEREONE not any one owner, presumed reasonable, would have to show arbitrary/brudensome so much so that it substantially outseighs benefits to EVERYONE or fundamental public policy (majority)
Nahrstedt v. Lakeside Village Condo Assn
