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
term/not enforce cov: changed conditions (3)
1) conditions have changed so drastically, that enforcement wll be of no substantial benefit to dom estates 2) condition changes INSIDE THE NEIGHBORHOOD 3) focus is on benefitted/dom estate, have they lost the benefit? (NOT burdened)
term/not enforce cov: undue hardship: aka
relative hardship
Real covenants: elements (5)
NOTE: must do separate evaluation for burden and benefit 1) writing 2) notice 3) intent 4) touch and concern 5) privity
El Di Inc v. Town of Bethany Beach
F: restrictive cov no alcohol sales, changed conditions: brown bagging, sold other places H: cov has changed so much that justifies eliminating (relig com to tourist area) –> change was significant enough to “render the benefits underlying imposition of the restriction incapable of enjoyment”
when do covenants run w the land? (3)
PRESUMED to run, if –benefits owner of neighboring land –touches and concerns –continues to benefit dominant land (similar to e: presumption for appurtenant)
remedies: declaratory judgment
the property is yours
real covenants, need:
ES + PRIVITY
term/not enforce cov: estoppel
reasonable reliance: usu owner of dom estate orally represents to serv estate that she won’t enforce the cov, other party detrimentally relies
IRNS: purpose
allows for planned communites to exist, covenants that mutually bind and benefit (all parcels intended 3rd party beneficiaries). –mutually enforceable (parties can sue each other)
IRNE rship w developer / orig owner (2)
–usu inclues grantor’s own covenant – they will continue to restrict future buyers –if developer dn still own any land usu can’t sue for enforcement (unlike the HOA, not a rep of owners)
RC elements: notice: inquiry notice
rarer than E. bc RC is a promise NOT to do something, so likely less visually obvious at the property…but some courts have found that eg all the houses look alike = inquiry notice
RC elements: intent
in deed–clear language indicating runs w the land (ex. “heirs and assigns”). USU courts hold that if it benefits land, it is presumed to run w the land
IRNS: def
WHEN: owner sells parcels w evidence of intent to create common plan or scheme of development, THEN: covenatns made to the seller benefit all parcels w/in the plan AND all parcels w/in the plan are bound by the covenants
IRNE: what to do about unrestricted lots? owned by neighbors
buyer usu on constructive notice
W: strict VP or relaxed?
STRICT!
F: HOA covenant banning black people H: racial HOA covenants are covered by 14th am state action requirement, bc state courts enforce them N: pretty much limited to these facts now bc of very broad application of state action doctrine
Shelley v. Kraimer
unreasonable covenant: minority view (restatement)
broader reasonability test that includes public policy considerations
term/not enforce cov: prescription
open and notorious use, w/o permission, for statutory period
remedies “property rule”
injunctions
Evans v. Pollock
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
term/not enforce cov: marketable title acts
c easements, must re-record the cov or it goes away
RC elements: touch and concern
must connect directly to use of the land – will benefit dominant estate and future owners
limits on covs: reasonableness test W
even if somewhat unreasonable, cov will be enforced if: 1) everyone has notice 2) dn violate pbulic policy
term/not enforce cov: statute
sometimes statutes change the standards or specify other ways to get rid of a cov (MA)
F: restrictive cov no alcohol sales, changed conditions: brown bagging, sold other places H: cov has changed so much that justifies eliminating (relig com to tourist area) –> change was significant enough to “render the benefits underlying imposition of the restriction incapable of enjoyment”
El Di Inc v. Town of Bethany Beach
HOA’s suing is…
exception to rule against benefits in gross
cov of quiet enjoyment, ex
ex: noisy neighbors (if under LL’s control)
Real covenants vs. equitable servitudes
1) one elements difference: RC needs privity, ES dn. (so harder to prove RC) 2) different remedies: RC also offers possibility of damages
RC elements: notice: inquiry notice–aka
actual implied notice
Shelley v. Kramer
F: HOA covenant banning black people H: racial HOA covenants are covered by 14th am state action requirement, bc state courts enforce them N: pretty much limited to these facts now bc of very broad application of state action doctrine
instantaneous horizontal privity
–current stadard –moment of privity btwn 2 contracting parties REQUIREMENTS: must be established at time of sale (so NOT jusg agreement btwn neighbors, and not a few days later – those would just be ks, not covenants that run w the land) (ppl get around this via straw man transactions)
factors tending to show NO common plan/scheme
some unrestricted, restrictions not uniform.
horizontal privity: common law requirement
ongoing interest in same land at same time (eg LLT, mortgager/ee, leaser/ee)
F: HOA covenant banning black people H: racial HOA covenants are covered by 14th am state action requirement, bc state courts enforce them N: pretty much limited to these facts now bc of very broad application of state action doctrine
Shelley v. Kramer
covenants – 2 elements that DN APPLY TO BENEFITS JUST BURDENS
notice HP
term/not enforce cov: unclean hands
benefitted estate (aka person trying to enforce) has itself violated the cov
IRNS followed by all courts?
no, sometimes only if restrictions explicit in deed
equitable servitudes: remedies
injunctive only
Blakely v. Gorin
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
Nahrstedt v. Lakeside Village Condo Assn
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)
IRNS: what’s different?
–exception to nl requirements bc dn TC land
Vertical privity (in general)
rshp btwn owner and subsequent owners
covenants in gross–exception
allowing HOAs to sue (bc they’re agents of homeowners)
Implied Restricted Negative Servitudes/Easements: why? (3)
–last parcel sold ends up w/o covenant bc orig seller has no remaining land for covenant to benefit –might accidentally leave restrictions off some lots –traditional system problem that later buyers could sue earlier buyers for not following cov (bc they bought on reliance of others) but earlier couldn’t sue later)
IRNS: requirement
evidence of a common plan or scheme
can HOAs sue?
to enfroce covs, yes – but usually their RTS needs to be stated in deed
term/not enforce cov: abandonment
benefitted estate has tolerated violations by owners of OTHER restricted parcels in the area for so long that it seems you’ve abandoned your cov
who has standing to enforce covenants?
usu not some other neighbor – just the parties and hteir successors (Neponsit important bc gave HOA privity to enforce)
14 ways to terminate or not enforce a cov
the big 2: 1) changed conditions 2) undue hardship in common with e. 3) express release 4) by its own terms 5) merger 6) AP/prescription 7) marketable title acts 8) abandonment bad behavior 9) acquiesence 10) unclean hands 11) estoppel 12) laches extra 13) racially restrictive 14) specific state statutes
F: P had 2 grocery stores, sold one w noncompete covenant, food desert H: against public policy so won’t enforce covenant. 8 pronged reasonability test: intention, impact on consideration, clear, written/actual notice, reasonable re time/area/duration, unreasonable restraint on trade, interferes w public interest, change circumstances make it unreasonable now? (minority)
Daivdson Brothers Inc v. Katz
term/not enforce cov: changed conditions – who do we focus on?
benefitted estate, have they lost benefit? (NOT the burdened estate or extent to which they’re burdened)
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
Woodide Village Condo Assn v. Jahren
term/not enforce cov: undue hardship
1) proof of great hardship to servient estate RELATIVE TO SMALL BEN TO DOM ESTATE – greater by a “considerable magnitude.” (if it’s just a burden to servient estate, not impressive–it’s a covenant! after all)
IRNS: notice requirement (3)
relaxed compared to notice requirements in other contexts –inquiry notice when buy in (nature of property) –constructive notice even if it’s just in title of nearby deed
IRNE: unrestricted lot owned by grantor
determinative: is it on the map/declaraction? (can also depend on if it’s in subdivision…)
real covenants: elements: writing: exception
sometimes exception for IRNS (eg HOAs)
Daivdson Brothers Inc v. Katz
F: P had 2 grocery stores, sold one w noncompete covenant, food desert H: against public policy so won’t enforce covenant. 8 pronged reasonability test: intention, impact on consideration, clear, written/actual notice, reasonable re time/area/duration, unreasonable restraint on trade, interferes w public interest, change circumstances make it unreasonable now? (minority)
Real Covenants: remedies
damages or injunction
