Ass. 26 - Defenses to enforcement of covenants

Question 1

defenses to enforcement of covenants

Answer 1

• changed circumstances
• relative hardship
• acquiescence
• estoppel
• laches
• waiver
• no common plan/scheme
• abandonment of og plan

Question 2

changed circumstances test

Answer 2

1. Purpose of the covenant?
2. Is the purpose still able to be met?
   - Is the benefitted lot adversely affected

Question 3

changed circumstances: court focus?

Answer 3

• benefitted lot
  (if adversly affected)

Question 4

border lot scenario

Answer 4

• border lot in a residential subdivision affected by changed circumstances
• development of the surrounding area creates conditions that render the vacant lots on the border unsuitable for residential use so the owner of a border lot wants to develop a commercial use

Question 5

changed circumstances definition

Answer 5

changed circumstances makes it unlikely that the covenant will be of substantial benefit to the covenantee or successors

Question 6

changed circumstances policy reasons

Answer 6

promotes rsbl use of land, unfettered by restrictions that no longer serve a substantial useful purpose

Question 7

relative hardship definition

Answer 7

if enforcing the covenant would cause hardship to the owner of the burdened land that is disproportionate to the benefit to be received by enforcing the covenant, the court will not enforce

Question 8

relative hardship: courts focus?

Answer 8

on the burdened land

Question 9

relative hardship balancing test

Answer 9

the hardship on the burdened land VS. the benefit to the benefitted land
(if the hardship on the burdened lot is very great and the benefit to the benefitted lot is minor)

Question 10

acquiescence

Answer 10

the P who ignored violations of a promise by some owners, but then seeks to enforce against the D

Question 11

estoppel

Answer 11

if P manifests an intention not to enforce a land use promise, and the D rsbly relies on this conduct to his or her detriment

Question 12

laches

Answer 12

arises when P unrsbly delay in enforcing a promise causes substantial prejudice to the D

Question 13

waiver

Answer 13

if waive right to enforce a covenant once, the right to enforce is lost and therefore should be waived again

Question 14

no common plan/scheme

Answer 14

the development does not have any common plan/scheme so therefore a covenant does not apply

Question 15

abandonment of original plan of development

Answer 15

the og plan of development was abandoned and therefore the covenant does not apply