Land Use Restrictions (Ch. 9)

Question 1

CC&Rs

Answer 1

covenants, conditions, and restrictions

Question 2

How are modern CC&Rs enforced?

Answer 2

Using the traditional tools of real covenants and equitable servitudes.

Question 3

real covenant

Answer 3

a promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors. (a.k.a. covenant running at law).

Question 4

burden/benefit

Answer 4

the burden is the duty to perform the promise, and the benefit is the right to enforce the promise.

Question 5

requirements for the burden to run (real covenants)

Answer 5

compliance with SoF, intent to bind successors, “touch and concern” land (ex. a promise to buy insurance does not touch and concern land), notice to successor, horizontal privity, and vertical privity.

Question 6

horizontal privity

Answer 6

concerns the relationship between the original parties to the promise.

Question 7

3 approaches to horizontal privity

Answer 7

mutual interests (requires that original parties have mutual interest in the affected land, such as landlord/tenant), successive interests (must be a grantor/grantee relationship between original parties, and no requirement (many states are abandoning the H.P. requirement).

Question 8

vertical privity

Answer 8

concerns the relationship between an original party to the promise and his successor. Test: V.P. exists only if the successor receives the entire estate that the original party had.

Question 9

requirements for the benefit to run (real covenants)

Answer 9

compliance w/ SoF, intent to bind successors, touch and concern, and vertical privity.

Question 10

Tulk v. Moxhay (1848)

Answer 10

Court found that an equitable servitude for the purchaser of land to maintain a garden on the property was enforceable via an injunction.

Question 11

Common plan exception

Answer 11

WIth an equitable servitude, when a developer creates a common plan to impose uniform restrictions on a subdivision, all lots are burdened and benefited by the restrictions even if they do not appear in the chain of title to every lot.

Question 12

requirements for the burden and benefit to run (equitable servitude)

Answer 12

complaince w/ SoF (or common plan), intent to bind successors, touch and concern land, and notice (only for the burden to run, not the benefit).

Question 13

What is the difference between a real covenant and an equitable servitude?

Answer 13

Both are promises concerning the use of land that benefits and burdens both the original parties and their successors, but the traditional remedy for a real covenant is money damages, while an equitable servitude is usually enforced by an injunction.

Question 14

Common interest community

Answer 14

a planned residential development where all properties are subject to private land use restrictions and which is regulated by a homeowners association.

Question 15

four basic parts of a CIC declaration:

Answer 15

homeowner’s association, CC&Rs, assessments (dues to fund the assocation), and ownership rights (usually provides that each unit owner holds fee simple in his unit, an interest in common areas, and a membership interest in the assocation).

Question 16

Nahrstedt test

Answer 16

CC&Rs will be upheld unless they are “whollyl arbitrary, violate a fundamental public policy, or impose a burden on the use of affected land that far outweighs any benefit…”

Question 17

Restatement approach to CC&Rs

Answer 17

A servitude is valid unless it is “illegal or unconstitutional or violates public policy.” Public policy is violated if the servitude is arbitrary or spiteful, unreasonably burdensome, is unconscionable, or imposes an unreasonable restraint on alenation or competition.

Question 18

abandonment of a covenant/servitude

Answer 18

will be established if an average person, upon inspection of a subdivision and knowing of a certain restriction, will readily observe sufficient violations so that he or she will logically infer that the property owners neither adhere to or enforce this restriction.

Question 19

Fink v. Miller (1995)

Answer 19

Court refused to enforce a covenant that required wood shingles are required on all houses b/c it had been abandoned due to loose enforcement and many non-conforming houses in the community.

Question 20

Vernon Township Volunteer Fire Dept. v. Connor (2004)

Answer 20

Court found changed conditions were not sufficient enough to justify not enforcing a ban on the sale of alcohol, b/c the purpose of the restriction was to protect the health and safety of the occupants, which was still a relevant goal.

Question 21

changed conditions rule

Answer 21

a covenant will not be enforced if changes to the immediate neighborhood alter or eliminate the benefit that the restriction was intended to achieve (this is a high standard).

Question 22

Schaefer v. Eastman Community Assocation (2003)

Answer 22

Court said that a board of directors of a CIC was within its powers to close a ski area in the community b/c an association’s powers should be interpreted broadly, and their actions will only be invalidated if they contravene either an express provision of the declaration or a right inferred from the declaration.

Question 23

Under what standard are discretionary decisions by a homeowners assn. usually reviewed?

Answer 23

Under a reasonableness standard

Question 24

business judgment rule

Answer 24

the assocation is not liable if the board made the decision in good faith and rationally believed that it was appropriate.

Question 25

private nuisance

Answer 25

the nontrespassory invasion of another’s interest in the use and enjoyment of land.

Question 26

public nuisance

Answer 26

an improper interference with ar ight common to the public (rare)

Question 27

nuisance requirements

Answer 27

P must establish that D’s conduct resulted in an intentional (either purposeful or knows that the harm is substantially likely to occur), nontrespassory, unreasonable, and substantial interference with P’s use and enjoyment of the land.

Question 28

gravity of the harm test

Answer 28

D’s conduct is unreasonable if it causes substantial harm, regardless of the social utility of the conduct.

Question 29

Restatement standrad for unreasonableness in nuisance cases

Answer 29

conduct is unreasonable if the gravity of the harm outweights the utility of the conduct.

Question 30

Boomer v. Atlantic Cement Co. (1970)

Answer 30

Nuisance