Pg 40

Question 1

What are all the different ways you can terminate a real covenant?

Answer 1

- time limit
– specified use or circumstances
– termination by contract defenses
– termination by property defenses
– release
– waiver
– impossibility
– frustration of purpose
– change of neighborhoods
– changed circumstances
– merger
– abandonment
– estoppel
– beneficiary’s death
– tax foreclosure
– adverse possession
– prescription 
- government acquisition
– legal invalidity

Question 2

How does a time limit terminate a real covenant?

Answer 2

The parties specify the duration in the instrument, so it terminates once that duration elapses

Question 3

How can specified use or circumstances terminate a real covenant?

Answer 3

If the restriction only applies to certain situations

Question 4

What are some contract defences that could terminate a real covenant?

Answer 4

Release, waiver, estoppel, impossibility, frustration of purpose, changed circumstances, beneficiaries’ death

Question 5

What are some property defences that could terminate a real covenant?

Answer 5

Tax foreclosure, adverse possession, merger

Question 6

How can release terminate a real covenant?

Answer 6

If the beneficiary releases the restriction through a voluntary act that frees the party from the obligations. This can happen by re-transferring the interest or cancelling the agreement

**This only binds the releaser. If a developer conveyed Lot 1 to A with a single-family dwelling covenant on all the retained lots, and conveyed lot 2 to B in the same way but later released him, A can still stop B from using the property for anything besides single-family dwelling because the release only terminated the right for the developer to enforce the obligation, but B still has a duty to A based on the developer’s covenant to A that ran with the land to bind B

Question 7

How can a waiver terminate a real covenant?

Answer 7

If the person entitled to the remedy intentionally passes on taking any action and manifests it expressly or by an act, he cannot later assert the right.

Question 8

How can impossibility terminate a real covenant?

Answer 8

If performance is impossible it depends on the intent of the original parties whether the burdened party should be liable. Express terms control, or if the impossibility was reasonably foreseeable. If it was intended to put the risk on the burdened party, then the impossibility is not a defence

Question 9

How can frustration of purpose terminate a real covenant?

Answer 9

The performance could be possible, but it wouldn’t accomplish the purpose that the original parties created the restriction for, so then there’s no reason for the restriction to continue

Question 10

How can change of neighbourhood terminate a real covenant?

Answer 10

If the neighbourhood of the burdened land changes enough, then the court can declare the covenant terminated or refuse to enforce it.

The change must be physical, substantial, create a use of land that is contrary to the covenant restrictions, and affect the general vicinity (not just a few parcels). The change must also cause the restriction to become useless and its benefits to be substantially lost so that it would be inequitable to enforce the covenant.

Loss of value or change in zoning is not enough. The easement terminates when the purpose it was created for ends

Question 11

How can changed circumstances terminate a real covenant?

Answer 11

If the reason for the restriction is no longer valid so that the changed conditions adversely affected the land and made it impossible to achieve the original parties’ intent, the covenant can be terminated. The focus is on the burdened lot, so a restriction will still be enforced if it still substantially is valuable to the benefitted land. Must argue the intended benefit and the degree of hardship on the burdened land

If the change is so radical that it renders the restriction of no substantial benefit to the dominant estate and defeats the object of it, it will be terminated

Question 12

If an owner of a huge parcel of land has a bed-and-breakfast that is famous for its view, and he sells the adjoining lot with a restriction that the new owner can never develop the land, then the bed-and-breakfast shuts down, will the restriction still be enforced?

Answer 12

No, because changed circumstances would’ve terminated it

Question 13

Is a change in zoning enough to terminate a real covenant?

Answer 13

Not unless the new ordinance prohibits the uses permitted by the covenant

Question 14

If A agrees with B to restrict her property to residential uses and at the time the whole neighborhood is residential, but now everything else is commercial, would that covenant still be enforced?

Answer 14

Probably not, because the slight benefit to B cannot justify the heavy burden on A, so the covenant will be terminated

Question 15

How can merger terminate a real covenant?

Answer 15

If both the dominant and servient parcels come into ownership by the same party, any use restrictions are terminated by the merger

Question 16

How can abandonment terminate a real covenant?

Answer 16

If the owner of the dominant estate abandons enforcement of the restriction PLUS has words or actions that show an intent to abandon. Widespread and tolerated noncompliance by owners can have the same effect.

Question 17

How can estoppel terminate a real covenant?

Answer 17

If the benefitted party represents either expressly or impliedly that the restriction will not be enforced and the burdened party reasonably relies to his detriment and in good faith on that representation, the real covenant is terminated.

Question 18

How can a beneficiary’s death terminate a real covenant?

Answer 18

If the restriction was meant to be a personal benefit to the beneficiary and not one that runs with the land, his death terminates it because there’s no reason to enforce it

Question 19

How can tax foreclosure terminate a real covenant?

Answer 19

If real estate taxes are not paid, the taxing entity can try to collect it by having the property forcibly sold and the proceeds used to pay off the tax debt. When that happens the real covenant is terminated

Question 20

How can adverse possession terminate a real covenant?

Answer 20

If an adverse possessor acquires a new title, that is not the former owner’s title if the possession that created the adverse possession was also inconsistent with the restriction. I.e.: if the restriction was that only a single-family dwelling could be built on the property and the adverse possessor used it as a gas station, that terminated the restriction

Question 21

How can prescription terminate a real covenant?

Answer 21

If a covenant has been violated for too long, it can be lost this way

Question 22

How can government acquisition terminate a real covenant?

Answer 22

If the government gets the burden property by eminent domain, it takes title free of all private restrictions but compensation must be given to all parties

Question 23

How can legal invalidity terminate a real covenant?

Answer 23

If the covenant violates the rule against unreasonable restraint on alienation, perpetuities, antitrust laws, etc. it is invalid. The same is true if it discriminates against classes of people that are protected by law

Question 24

What is the remedy for breach of a real covenant?

Answer 24

Money damages. Injunctions are only given when the legal remedy is inadequate to prevent future injury to unique property interests