Private Land Use Controls: Servitudes

Question 1

Types of Servitudes

Answer 1

easements and covenants

Question 2

Servitude definition

Answer 2

Interests in land created by an agreement and provide mutual benefits and burdens of the parcel

Question 3

Easement

Answer 3

An interest in real property that gives one person the right to use another person’s land for some specified purpose

Question 4

Easement in gross

Answer 4

does not benefit any land, and involves no dominant estate, only a servient estate

Alienable or unalienable (transferable)

Do not attach to any parcel of land owned by the easement owner (benefits individual or entity not piece of land)

Example: railroad company coming in to cross both back and front lot properties

Question 5

Easement appurtenant

Answer 5

Example in slides: the actual road used

Burdens one person and benefits the person bringing forth

Requires: dominant tenement (or estate which benefits) [back lot in slides] and servient tenement [front lot in slides, burdened]

The easement attaches to and benefits dominant tenement

Usually transferrable

Transfers to successive owners

If not clear which it is this

Question 6

Willard

Answer 6

Rule: A grantor may reserve an interest in the land to be granted, for use by a third party. (minority)

Facts:

Appurtenant

Willard filed an action for quiet title for a lot against the church (declaratory action)

Mcguigan owned two side by side lots across the street from the church where she was a member (19 and 20)

She allowed them to use lot 20 for parking for the services

She eventually sold 19 to Peterson who later decided to sell the lot and listed the property with realtor Willard

Willard wanted to buy both (19 and 20 lots) and Petersen delivered deed for both lots in fee simple (at the time P did not own 20 so he went to mcguigan with an offer to purchase it)

She said she would sell if it was still used for parking for the church (used church attorney and easement added) and Petersen recorded the deed

When Willard recorded, he did not mention the easement

Willard found out about the easement bringing the lawsuit

Mcguigan said she would not have sold it if it was not used for that purpose

PH: trial court ruled in favor of the Willards (court said it went against common law rule that grantor cannot reserve an interest for a third party)

Holding:

Third party interest is valid in a deed if the reservation was the clearly discernible intent of the grantor

The common law rule: Kentucky and Oregon had abandoned it because it was a limitation and the primary purpose should be to give effect to the grantor’s intent and this could frustrate the intent of the grantor so California would also abandon it

Considered equity and public policy and Mcguigan’s intent should be honored (it was clear she wanted the parking to stay so clause was valid and enforceable)

Ruled for church

Question 7

Mund (implication/estoppel)

Answer 7

Rule: A license that is based on an oral promise becomes irrevocable when the licensee makes valuable improvements to land on the basis of the promise.

Facts:

Family dispute over ownership of a well

Plaintiffs are son and daughter in law of the defendant

Plaintiffs and defendant and deceased husband of defendant purchased adjoining one acre parcels, in that year water was drilled on defendant’s property (equipment and pipes were installed so both plaintiff and defendant could access the water)

Plaintiffs contend that from the beginning their interest was permanent and irrevocable

Defendant claims that their interest was not permanent and subject to certain conditions (it’s a license not an easement)
PH: trial court found for defendant

Holding:

Complainants say it goes against statute of frauds

Court agrees but:

No. A license that is based on an oral promise becomes irrevocable when the licensee makes valuable improvements to land on the basis of the promise. This arises not because the parties agreed to make the license irrevocable, but because an injustice would result if the license could be revoked. This is an exception to the general rule that oral licenses may be revoked by the licensor at any time. In this case, there is no written evidence of the intent of the parties at the time of the agreement, but their conduct suggests that they intended for a permanent arrangement. Both parties cooperated in building the well, and have continued to share expenses in operating it. Most significantly, the plaintiffs built a residence on their property in reliance on continuing to be able to withdraw water from the well. These factors demonstrate that the plaintiffs believed they had a permanent arrangement and relied on having a permanent arrangement. Accordingly, the judgment of the trial court is reversed, and the case is remanded for an injunction granting the plaintiffs a one-half interest in the well and water system and an easement allowing plaintiffs to access the water system.

their conduct was not fraudulent

An easement by estoppel can be created without writing when:

A valid license was given

On which licensee relied

It would be unfair to permit revocation

Question 8

Difference between license and easement (mund)

Answer 8

easement is property interest license is not

Can revoke license cannot revoke easement

license does not require a writing

Question 9

How to create easements (4 ways with 2 subfactors)

Answer 9

1. Express (Willard)
2. Prescription/ AP (Mund and Othen)
3. Estoppel (Mund)
4. Implication

-Prior existing use (van sandt)

-Necessity (Othen)

Question 10

License definition

Answer 10

License: oral or written permission that would otherwise be trespass

Question 11

Implication/ Estoppel (mund)
An easement by estoppel can be created without writing when (from license):

Answer 11

A valid license was given

On which licensee relied

It would be unfair to permit revocation

Question 12

Van Sandt

Answer 12

Rule: An easement will be implied in favor of a grantor for sewer pipes running under the grantee’s land, because the grantee is charged with notice, as the existence of such pipes is apparent even if it is not visible.

Facts:

Action was brought to enjoin defendants from using and maintaining an underground lateral sewer drain through and across the plaintiff’s land

Bailey was the owner of 3 lots (19,20, and 4) L-R (Highland avenue ran north and south/Tenth Street running east to west)

City built sewer line across Highland avenue

Bailey made a drain on lot 4 across 19 and 20 and connected to sewer line

In 1904 sold 19 to Johns and 20 to murphy and didn’t reserve easement in the deeds and each of them built a drain for their lots

1936 Van Sandt owned 19 and Royster owned 20 and Gray 4 (none of deeds mentioned drain pipes)

Van Sandt’s basement flooded and demanded Royster and gray stopped draining but they refused so he sued

Van Sandt argued deed did not contain easement

PH: judgement for the defendants, trial court said it was allowed to run through the properties

Holding:

Yes. An easement is a right to use someone else’s land. An owner cannot have an easement in her own property, but the phrase quasi-easement is used when a landowner uses one part of her property to benefit another.

Defendants say that an easement was created by implied reservation on the severance from the servient from the dominant from Bailey to Jones

Necessity includes cases where the property could be used without the easement, but only with difficulty and expense. If the usage of the easement was apparent, that supports the claim that the easement exists. Moreover, the fact that pipes are buried and not visible does not mean that the easement is not apparent. Here, the easement for the pipe was necessary for the use and enjoyment of the other parcels. Jones knew about the pipe when he bought the land. Van Sandt conducted a thorough inspection before he bought the house. Van Sandt saw the modern plumbing and knew the lines had to drain into a sewer. The easement was apparent, and Van Sandt is charged with knowledge of it. The trial court’s judgment is affirmed.

Question 13

Elements for the creation of an easement by implication because of a prior existing use (quasi-easement) Van Sandt

Answer 13

Severance of title to land initially undivided

An apparent, existing, and continuing use of one parcel at the time of the severance and

Reasonable necessity for the use at the time of severance

Question 14

Othen v. Royster

Answer 14

Facts: Othen brought suit to enforce a roadway easement on lands of respondents/ Rosier and other defendants claim easement both of necessity and prescription

Land of both parties is a part of tone survey of 2493 acres all of which was formerly owned by one hill

Rosiers own tracts of 100 and 16 acres over which Othen claims an easement

On west side of rosier’s 100 acres is a highway running north and south

Othen’s own 60 acres and 53 acres to the east of and contigous to the rosier’s land

Order of events:

Hill conveyed 100 and by mesne conveyance this tract came into hands of the rosiers

Hill conveyed 60 and also by mesne conveyance tract ended up with the othens

The 53 and 16 were conveyed to other purchasers who ended up separately selling them to othen and rosien

Tone survey touches 3 roads but Othen’s land is not contigous to any of them so he must cross someone else’s land to get to them

Eventually, Rosier was concerned that certain water patterns threatened to cause damage to his property, so he constructed a levee to channel the flow. The levee blocked half of the road used by Othen, and rendered the path muddy and unusable. Othen sued Rosier, alleging that Rosier had blocked his right of ingress and egress to and from his farm. Othen asked the court to order Rosier to remove the levee and enjoin Rosier from further depriving Othen of use of the path.

PH:

The trial court found that Othen had an easement of necessity across Rosier’s land, and entered the requested injunction.

The Court of Civil Appeals reversed the trial court, and Othen appealed.

Issue:

(1) Whether an easement of necessity is proven where the purported easement holder cannot state that the easement provided the exclusive means of access to the public road.

(2) Whether an easement by prescription is created where the property owner knew of and tolerated the use of the property by another.

Holding:

(1) No. An easement by necessity is created when the owner of an estate conveys a portion of his land, but needs to reserve for himself the use of part of the conveyed land.

In order to prove an easement by necessity, the purported easement holder must show that, at the time of the conveyance, the easement is necessary for entering and exiting to and from the dominant property.

Here, the evidence failed to show that the easement was “necessary” to reach the land eventually owned by Othen at the time that Hill first conveyed the Rosier land. Although there was evidence that there was no other means of reaching Othen’s land for the past forty years (i.e. since 1900), there was no evidence about the means of reaching the land from the public road in 1896, when the land was conveyed. Thus, Othen failed to prove that he received an easement of necessity.

(2) No. An easement by prescription is obtained under circumstances similar to adverse possession. The purported owner of the easement must make use of the easement in a manner adverse to the actual owner of the land.

If the owner has knowledge and grants consent (actual or implied) to use the land, no easement by prescription can be created. Here, Othen’s actions did not amount to an easement by prescription because all parties had used the land throughout their occupation of the land. Under the circumstances, Othen was merely granted a license to use the land, which cannot ripen to an easement by prescription. The judgment of the appeals court is affirmed.

Question 15

Difference between OTHEN AND vAN sANDT

Answer 15

Strict necessity for necessity instead of just apparent

No other options!

Question 16

elements for implied easement by necessity

Answer 16

There was a unity of ownership between the servient and dominant estate

The alleged easement is a strict necessity not a mere convenience

The necessity existed at the time of the severance of the two estates

Question 17

Merger Doctrine

Answer 17

when dominant and servient merge, the easements are destroyed

example: girl has an easement by implication because of prior existing use over guys property. Girl then purchases guys property. What would happen to the easement? If you own the underlying land the easement loses its purpose

Question 18

questionable merger doctrine divisibility question:
A eventually owns everything so merger doctrine

Then estate equally divides among 5 kids the 5 lots

F got land locked parcel (the center lot)

Answer 18

Easement has to go somewhere but we don’t know where (so we can look to different principles like balancing equity)

-What makes F’s life easiest

-Least burden on servient estate

-Cost

Question 19

Miller v. Lutheran (assignment of easements

Answer 19

Rule of Law

Easements in gross are not divisible without the consent of all parties holding an interest.

Facts

Frank Miller (plaintiff), his brother, Rufus Miller, and others created a corporation to charter a dam for boating, fishing, and skating” which led to the creation of Lake Naomi.

The corporation granted to Frank Miller, his heirs, and his assigns by deed the exclusive right to fish and boat on all the waters of the lake. Frank and Rufus also created a partnership to build and operate boat and bath houses.

Frank granted Rufus a one-fourth interest in the fishing, boating, and bathing rights.

After Rufus died, his heirs began to grant licenses to lakefront property. One such license, given to Lutheran Conference & Camp Association (defendant), permitted Lutheran to boat, bathe, and fish in the lake. Frank sought an injunction to stop Lutheran from using the water for bathing purposes.

Frank argued that he never actually had the ability to transfer bathing rights to Rufus because the bathing rights remained in the corporation’s possession. Frank argued in the alternative that even if Frank had the bathing rights, then the boating, bathing, and fishing privileges were indivisible easements in gross, so Frank could not grant a one-fourth interest to Rufus.

Thus, Frank argued the bathing rights never transferred to Miller or subsequently to Lutheran.

Lutheran countered that Frank and Rufus acquired the bathing rights by prescription, which allowed the rights to be divisible.

PH: The lower court issued Frank’s injunction against Lutheran.

Issue

Are easements in gross divisible without the consent of all parties holding an interest?

Holding and Reasoning (Stern, J.)

No. Easements in gross are not divisible without the consent of all parties holding an interest.

An easement in gross is assignable and divisible, but if divided, all those holding an interest must act as a single entity. Easements in gross can ripen into title by prescription if there is sufficient evidence of systemic use.

In this case, Frank is entitled to an injunction because Rufus’s heirs could not act unilaterally in granting a license to bathing rights.

Lutheran is correct that the corporation’s easement in gross ripened into title to the bathing rights by prescription due to Frank and Rufus’s operation of bath houses. However, the boating, fishing, and bathing rights were nevertheless indivisible.

Frank obtained an easement in gross when the corporation granted him, his heirs, and his assigns fishing and boating rights. In mentioning Frank’s assigns, the corporation intended to grant Frank assignability of the fishing and boating privileges. Frank assigned this grant to Rufus, as is permitted with easements in gross. However, Rufus’s heirs and Frank must enter into licensing agreements as a single entity into order to subdivide the license to others. Thus, the license granted to Lutheran by Rufus’s heirs is invalid because Frank did not consent to the subdivision of the license to Lutheran. Therefore, the judgment of the lower court is affirmed.

Stern layout:

Easement in gross (that don’t run with the land) are made either by:

Direct grants or open and adverse use (easement by prescription)

Can be assignable if grantor intends them to be assignable but can’t be divisible

Original document said Frank could assign (his heirs and assigns forever) but grant did not include bathing rights but nobody objected to it so it was made by prescription to bathe

Question 20

Assignment of easements

Answer 20

Easements pass with owners usually but if it is in gross it may not

Question 21

Restatements and Divisibility (one doctrine and one rule)

Answer 21

-reasonable use doctrine
-one stock rule

Question 22

Reasonable Use Doctrine

Answer 22

Easement co-owners can act unilaterally in assigning/dividing the easement so long as they don’t burden estate beyond their ownership share

Question 22

One stock rule

Answer 22

Easement co owners must act in unison in deciding to assign/divide property

Question 23

Brown v. Voss (scope of easements and remedies)

Answer 23

An owner of a dominant estate can use the easement to access later acquired property if it does not place an additional burden on the servient estate

Rule of Law

Facts

In 1952, the then-owners of Parcel A granted the then-owners of Parcel B a private road easement that was to be used for coming and going to and from Parcel B (dominant) through Parcel A (servient).

Voss (defendant) acquired Parcel A in 1973, and Brown (plaintiff) acquired Parcels B and C in 1977, at different times and from different owners.

The previous owners of Parcel C had nothing to do with the easement relating to Parcel B. Brown (B) desired to build a house on his land straddling Parcels B and C (he bought C also) and began preparations for this endeavor in November 1977. In April 1979, after Brown had spent almost $11,000 preparing to build the house, Voss (A) placed a fence, logs, and a concrete sump on the easement land in order to prevent Brown from further using it.

Brown sued to have the obstructions removed. Voss countersued to prevent Brown from using the easement for access to anything other than Parcel B. (injunctions)

PH: The trial court found that (1) there was no significant increase in the traffic along the easement as a result of Brown’s acquisition of Parcel C; (2) Parcel C would be landlocked if access to it through the easement on Parcel A were prohibited, which would hamper Brown’s enjoyment of his land; and (3) any order prohibiting Brown from using the easement to get to Parcel C would be impractical and unenforceable. The court ruled in favor of Brown and ordered that he be permitted to use the easement to access Parcels B and C. The court of appeals reversed (saying easement cannot be used to benefit another parcel acquired later), and Brown appealed to the Washington Supreme Court.

Issue

Is it an actionable misuse of an easement, intended to grant access to one plot of land, to access a second adjoining plot of land?

Holding and Reasoning (Brachtenbach, J.)

Yes. If an easement appurtenant to land is granted for a specific purpose, it is a misuse of that easement to use it for any other purpose. If one estate is burdened for the benefit of another estate, that benefit may not be unilaterally extended to another estate.

Here, the easement across Parcel A was granted with the purpose of permitting ingress and egress to and from Parcel B, but not Parcel C. Brown may not use the existing easement to benefit Parcel C if the express terms of the grant do not address it. Brown intended to use the easement to get to a house of which half sits on Parcel C, which is in violation of the terms of the easement grant. However, the trial court has the equitable power to decide the appropriate relief and has the prerogative to make findings of fact that appeals courts are ill equipped to second guess.

Here, the evidence suggested, and the trial court found, that the burden on the easement was not substantially increased by the proposed use, that Brown acted reasonably in developing his property, and that Voss sat by for over a year while Brown spent substantial money on the process of constructing a house. The trial court also found that Voss would suffer no appreciable harm from the continued use of the easement while Brown would suffer significant harm from not being able to access Parcel C by going through Parcel A. Because these findings are appropriate, the Appellate Division should not have overturned them. The Appellate Division’s judgment is reversed, and the trial court’s judgment is reinstated.

Question 24

General Rule regarding appropriate use of easements appurtenant:

Answer 24

“An easement appurtenant to one parcel of land may not be extended by
the owner of the dominant estate to other parcels owned by him, to which
the easement is not appurtenant.”

Brown v. voss shows departure from this rule by balancing equities

Question 25

Covenants running with the land (a promise): Real Covenants defintion

Answer 25

it involves a promise made by one landowner (the promisor) to another (the promisee) regarding how the land will be used or maintained.

Question 26

Covenants running with the land (a promise): Real Covenants requirements

Answer 26

**1. writing **

**2. intent to bind future successors **

**3. promise touch and concern the land **

Directly relates to the land

**4. privity between parties (a relationship) **

*Horizontal privity: *between original parties (do they have a mutual or successive relationship/interest to the same piece of land?)

Examples:

promisor and promisee are co tenants in same property

Buyer and seller of a piece of property

Vertical privity: between promisee and assignee (succeeds to any interest from original promisee) (did one of the original parties convey an interest in land burdened or benefitted by the covenant to a third party?

Examples:

Promisor 10 acres fee simple absolute, gives promisee 5 acres fee simple absolute

Total vertical privity: Subsequent owner gets 5 acre fee simple absolute (took all sticks with sale)

Partial vertical privity: subsequent owner leasehold (only took some sticks with lease)

How is a real covenant different than an easement?

Question 27

How is a real covenant different than an easement?

Answer 27

Covenant gives negative rights

Easement gives positive rights

Question 28

Why aren’t simple contracts good enough to limit how properties are used?

Answer 28

Contracts can only bind parties to the agreement

But covenants can run with the land and bind others

Question 29

Covenants enforceable in equity: equitable servitudes definition

Answer 29

allows one property owner to impose restrictions on the use of their land that can be enforced against future owners of the neighboring property.

Question 30

Covenants enforceable in equity: equitable servitudes requirements

Answer 30

**1.Intent (same as for real covenants)

2.Notice

**3.Touch and Concern the land (same as real covenant) **

Does the covenant on the one hand, a burden on the interest of land, which on the other hand increases the value of a different interest in the same or related land

Vertical and horizontal not required (no privity requirement)

No writing required

All subsequent owners and possessors are bound

Loosy goosy

Question 31

Tulk v. Moxhay (created equitable servitude)

Answer 31

Rule of Law

One who purchases property with knowledge of a restrictive covenant burdening the land must honor the covenant.

Facts

Tulk (plaintiff) owned Leicester Square, a plot of land that contained houses and a square garden. In 1808, he sold a portion to Elms, conveying the portion in fee but containing a covenant (deed restrictions) that said:

Maintain park as open space

No building within the park

Park must be available to the residents of the square

(applies to Elmes, his heirs, assigns, and anyone else who acquires title)

Elms’s land was eventually conveyed to Moxhay (defendant), whose deed did not contain the same covenant, although he took the land with knowledge of it.

Moxhay desired to build upon the square garden. Tulk, who still owned several houses on the land, sought an injunction preventing Moxhay from disturbing the square garden.

The lower court granted the injunction, and Moxhay appealed.

Issue

May a covenant restricting use of a piece of land be enforced against a subsequent purchaser of the land?

Holding and Reasoning (Cottenham, L.C.)

Yes. A party purchasing real property may not receive rights to the property greater than those owned by his seller. Here,

Moxhay’s purchase of the land is in direct line with Elms’s ownership interest, which clearly had a covenant attached, and Moxhay knew of the covenant (he was on notice).

It would be inequitable to permit Elms to sell property that he knew to be burdened to another party and receive compensation for the land as though it were free and clear, for this would render the intent of the original covenant meaningless. The lower court’s judgment is affirmed.

Question 32

How is equitable servitude different than a real covenant?

Answer 32

• Real covenants are damages
• Equitable servitudes are injunction

Question 33

Creation of Covenants

Sanborn v. Mclean

Answer 33

The court found that the intent and notoriety requirements for equitable servitudes were met despite the fact there was no direct evidence of either of these elements

Rule of Law

If the owner of two or more related lots conveys one with restrictions for the benefit of the retained lot(s), the restrictions are deemed to also apply to the retained lot(s).

Facts

The McLaughlins owned a large tract of land. In 1892 and 1893, they conveyed several portions of the land to others. These conveyances included restrictions to the effect that only residences would be built on the land. In 1910 or 1911, the McLeans (defendants) purchased some of the land through a series of conveyances tracing directly to the McLaughlins, whose title did not include the same restriction. The McLeans started to build a gas station on their lot. Sanborn and other neighbors (plaintiffs) sued the McLeans to enjoin the construction of the gas station.

Nuisance per se

Lot 86 subject to Reciprocal negative easement (as 53 of the 91 lots have)= (equitable servitudes)

**Don’t say negative easement but say covenant for negative rights and easement for positive rights* **

The trial court granted the injunction, and the McLeans appealed.

Issue

Whether the owners of a lot subjected to a negative restrictive easement had knowledge of the restrictions where their conveyances did not contain language setting forth the restrictions.

Holding and Reasoning (Wiest, J.)

Yes. When the owner of related lands conveys part of the land to another with restrictions intended to benefit the retained land, the same restrictions apply to the retained land by operation of law. Such restrictions are enforceable against each subsequent purchaser with knowledge of the restriction until the easement expires or other events render the restrictions outdated. In this case, the McLeans’ title traced back to 1892, when the McLaughlins first conveyed restricted land to others. In doing so, the McLaughlins created the restrictions on their own land as well.

When the McLeans purchased their plot in 1910, they should have noticed that their plot of land traced back to the McLaughlins, who owned 97 related surrounding parcels. The McLeans should also have noticed that those related parcels conveyed with strict limitations on use. Moreover, the McLeans should have been able to observe that the lots surrounding theirs contained houses that conformed to a general consistent plan, which at a minimum put them on inquiry notice that the land was uniformly burdened with similar covenants. The trial court’s injunction is affirmed.

**Inquiry notice leads to constructive notice **

Question 34

A and B, neighboring landowners, decide that they will mutually restrict their lots to single family residential use. They sign an agreement wherein each promises on behalf of herself, and her heirs and assigns, that her lot will be used for single family residential purposes only. This agreement is recorded in the county courthouse under the name of each signer. B sells her lot to C. C builds an apartment house on his lot. A sues C for damages. What result? Suppose that A rather than C had built the apartment house. Is C entitled to damages against A?

Answer 34

1, P. 843: A and B, neighboring land

Q #1, P. 843: A and B, neighboring land
owners…What result when A sues C for
damages (assume A and B had FSAs,
and all sales were for FSA)?

A. A loses, because B and C did not have total vertical
privity.
**B. A loses, because A and B did not have horizontal privity **
C. C loses, because B made a valid promise.
D. C loses, because C bought with notice.

owners…What result if C sues A for
damages (assume A and B had FSAs,
and all sales were for FSA)?

If C can sue we must prove that it runs with the land when A and B made promise

A. A loses, because B and C did not have total vertical
privity. (total vertical privity is not required)*****
**B. A loses, because A made valid promises to B **
C. C loses, because B made a valid promise.
D. C loses, because C bought

Redo Q #1, P. 843: A and B,
neighboring land owners…
+ What result when A sues C for injunction?

Start with equitable servitude elements

can do that if C is not following covenant created with B and it runs with the land and C was on notice

Intent, notice, touch and concern

Agreement runs to C even though he didn’t negotiate (don’t need privity so first transaction doesn’t matter)

Question 35

Common Interest Communities

Answer 35

Large scale developments whose operation, ownership, and occupancy are governed by covenants running with the land and community associations created to enforce such covenants

Technical term for HOA or COA (condos)

Derives its power from covenants

Question 36

How are CRC’s formally created?

Answer 36

Declaration

Document that identifies all of the rules the community has to live by

Question 37

Nahrstedt v. Lakeside Village Condominium (common interest development example for covenant)

Answer 37

Rule of Law

California law provides that common-interest-development use restrictions are enforceable unless unreasonable.

Facts

Nahrstedt (plaintiff) purchased a unit in the Lakeside Village Condominiums and moved in with her three cats. When the condominium association (association) (defendant)(plus officers and two employees) learned of the cats, it demanded their removal.

Nahrstedt sued the association, arguing that the restriction was unreasonable as applied to her cats, which were kept indoors and not free to roam any common areas. Sought declaratory and injunctive relief

The trial court sustained the association’s demurrer (even if the facts presented by the opposing party are true, they do not constitute a valid legal claim or defense) against the complaint, and Nahrstedt appealed.

A divided appeals court held that Nahrstedt’s allegations that her cats remained indoors and did not bother her neighbors could, if proven, support a declaratory-judgment action if the application in her case of the pet restriction would not be reasonable. The association appealed to the California Supreme Court.

Issue

Is a restriction in a condominium complex’s rules that prohibits dogs or cats unreasonable?

Holding and Reasoning (Kennard, J.)

No. Condominium rules generally are given a presumption of validity and will be enforced unless unreasonable, or if they are unconstitutional or against public policy.

Such deference is appropriate because condominium owners are entitled to know that the restrictions on use in place at the time they purchased their units will be enforced.

Lakeside Village subject to covenants, conditions, and restrictions that were included in the developer’s declaration that was recorded

This encourages the development of common-interest developments, which are generally cheaper than single-dwelling buildings and attract buyers looking for stable, planned environments.

Moreover, giving condominium rules a presumption of validity discourages lawsuits and promotes stability and predictability. Employing a case-by-case view of such challenges, therefore, defeats the purpose by increasing the likelihood of lawsuits.

In determining whether a restriction is “unreasonable” under section 1354, and thus not enforceable, the focus is on the restriction’s effect on the project as a whole, not on the individual homeowner.

Here, the appeals court erred by holding that a determination of reasonableness is guided by the application of the rule to the individual homeowner subjected to the rule, instead of with reference to the well-being of the development as a whole. As a matter of law, the association’s rule prohibiting dogs and cats while permitting other pets is not unreasonable, and no set of facts alleged by Nahrstedt would support the entry of declaratory judgment.

No public policy supports overruling the association’s rule, and no constitutional or statutory rights guarantee a person’s right to maintain his or her pets in common-interest developments. The appeals court’s judgment is reversed and the case remanded.

Question 38

When will a challenge to a CIC’s restrictive covenant be successful?

Answer 38

**When it is unreasonable: **

Means and legitimate purpose must be rationally related

For cat case: means is no pets, legit purpose is health, sanitation, and noise (are those rationally related? Court said yes)

**Three meanings to be unreasonable: **

Burden is too great for the benefit

Much achieve some purpose

Violates public policy

Question 39

A restrictive covenant will be enforced uniformly against all subject to the covenant unless it is found to be facially unreasonable which means that:

Answer 39

The restriction is arbitrary

Imposes burdens on these of lands it affects that substantially outweigh the restriction’s benefits to the development’s residents OR

Violates public policy