Pg 36 Flashcards
What is a restrictive covenant?
The right to someone else’s use of their land. The beneficiary of this covenant does not have a right to enter that land, but he does have a right to require the owner of the servient estate to do or do not do something on his own land
What is a covenant?
An enforcible promise by one person to another to do or to refrain from doing something that can be enforced at law against him.
Do covenants run with the land?
Yes
What is another name for a restrictive covenant?
Negative easement
What is the role of the covenantor in a covenant?
To do or to refrain from doing whatever was promised. This puts restrictions on the use or enjoyment of that person’s land and makes title less marketable, so it counts as a burden
What is the role of the covenantee in a covenant?
This person has the right to have a duty performed. He cannot enter the burdened land, he can just require the owner to do or to not do something on that land
What is the difference between a covenant and an easement?
– An easement gives someone the right to enter someone else’s land (remedy: equitable)
– a covenant gives the right to tell someone else how to use their own land (remedy: damages)
What is the covenant that gets made regarding developments for common areas such as playgrounds, tennis courts, parking lots, pools, private streets, grounds that collect maintenance fees from individual homeowners, etc.?
The owners make an affirmative covenant to contribute to the upkeep
Homeowners in subdivisions and retail merchants in malls make negative covenants to do what?
Protect the order, beauty, and tranquillity of development
What is the difference between an affirmative and negative covenant?
– negative means you promise NOT to use the land for any other purpose than one stated. You will abide by the rules
– affirmative promise to PERFORM an act
What is an implied negative covenant?
When the owner of two or more lots that are close together sells one with restrictions of benefit to the land that is retained. The land must be under common ownership at the time the restriction is imposed. It only applies if the other party had notice and there must have been a common plan that put the purchaser on notice
How do you determine if a covenant is implied?
The idea is that the term is implied because the parties must have intended it but failed to express it, or it is necessary to give efficacy to the contract as written
How does a common plan of development give notice to the buyer of an implied negative covenant?
Factors such as: seeing recorded deeds that bind the grantees to a restriction, seeing subdivision develop in a uniform way, restriction included in deeds and followed on the ground, etc.
Is coincidental development considered to be a common plan?
No
In order for there to be a common plan of development does the restriction have to be in every deed?
No, there just has to be a large majority
In order for there to be a common plan of development does each deed have to be identical?
No, you just need a common pattern of restrictive language
What is necessary for the development on the ground in order to sustain a common plan of development?
The development on the ground only has to generally conform to the deed restrictions, it does not have to be uniformly observed, and every lot does not have to have the same restrictions
Important: deed restrictions and a pattern of physical development
Who can enforce a common plan of development?
Only someone that has some interest in the land
Is it possible to put restrictions on land that are contrary to the law or discriminatory?
No. So if there was a restriction that you could not sell your property to black people that would not be upheld
What is an essay approach for easements?
- Is the restriction valid? It could’ve been made expressly, impliedly, or by estoppel
- The plaintiff must be the right person to enforce the restriction and the defendant must be the right person to enforce it against
- Defences that would cause invalidity: equitable, contract, property defenses, violation of public policy, or a controlling federal or state constitutional provision or statutory/regulatory provision
If a restriction on property has unclear or ambiguous language, what happens?
The courts resolve against the restriction and in favour of free enjoyment of the property
What does it mean for a benefit or a burden on land to run with the land?
It goes with the land to remote people that get an interest in the land
Is it possible for a covenant to have a benefit that runs with the land and a burden that doesn’t?
Yes, sometimes one can run without the other because the requirements are applied separately for benefits and burdens
What is the police power?
The power of the government to regulate and protect the public general welfare in a constitutional way including public health, safety, welfare, and morals
What are some relationships that can create restrictions on land?
Landlord-tenant, grantor-grantee
What is the fair housing act?
Makes it unlawful to discriminate in the sale or rental of property because of a handicap of someone intending to reside there or because of race, color, or national original. People cannot refuse to rent any dwelling, offer discriminatory terms/conditions/privileges, or put any notice/ad that shows a preference or represent that the dwelling is not available when it is
What is discrimination?
Refusing to make reasonable accommodations in rules, policies, practices, or services when necessary to give someone an equal opportunity to use and enjoy a dwelling
What does a restriction on land do?
It dictates how someone else can use their own lando
What is a negative restriction?
A promise not to use property in a certain way
What is an example of a negative restriction?
An order to preserve the ocean view for neighbours by not building tall structures, or promising to use a vacant lot only for single-family dwellings and not any other purpose, or promising not to sell clothing in a shop, or promising that the property will only be used for office space, or that the grantee will do no construction on the property
What is the only way to challenge and win a condo restriction such as “no cats”?
You must prove that the restriction is wholly arbitrary, violates a fundamental public policy, or imposes a burden on the use of affected land that far outweighs the benefit
What is an affirmative restriction?
A promise to use property in a certain way
What is an example of an affirmative restriction?
A mall tenant promises to maintain certain shop hours or pay associated fees, a tenant promises to build a wall on the premises, a grantee promises to use land to supply water to the grantor’s land, the buyer will pay all monthly homeowner fees, the tenant will maintain the demised premises in good condition, etc.
What is an express covenant?
Created directly by the meaning of the parties’ words. I.e.: written lease provision not to use property in a certain way
