Servitude Cases Flashcards
Schad: “Dam and mill”
Covenant: Unless there was privity of estate between the parties at the time the covenant was entered into, the burden will not run with the land. Covenants are contractual in nature, and remedies for their breach are normally fixed by the agreement. The primary question in dealing with covenants is, are successors in interest bound by the agreement. There must be some showing that successors in interest were intended to be bound by the agreement. The covenant must touch and concern the land. Privity of estate must exist at the time the agreement was entered into by the parties. The failure of any of these three conditions will mean that the covenant does not run with the land.
Berger: “Make Thy Neighbor Thine Bitch”
Covenant: If a restrictive covenant is imposed upon certain land for a neighboring landowner’s benefit, that landowner may enforce the restriction.
Rhue: “Moving Spanish-style house”
Covenant: The authority to approve or reject new housing in a subdivision CAN be vested in an architectural control committee which is not bound by any specific standards as long as the board acts in a manner that is “reasonable and in good faith and not arbitrary and capricious”
Davis: “No notice about submitting plans”
Covenant: Covenants that require submissions of plans and prior consent BEFORE construction are valid, as long as they furnish adequate NOTICE to the property owner of the specific restrictions sought to be enforced.
Jones: “Jones Stretches Shelley’s Privates”
Covenant: In lieu of §1982, all discrimination (both public and private) in sale and rental of property is illegal under the 13th Amendment.
Point East: “Pointing to Myself”
Covenant (Condominia): The developer of a condo project may lawfully contract with itself for the subsequent management of the condos. This is not a contract of adhesion because people don’t have to live here. NOT LEGAL ANYMORE – after this case, Florida Condo Act was passed which restricts self-dealing
Chateau Village : “Cat lady”
Covenant (Condominia): Quasi-sovereign bodies (ex: board) must exercise discretion in a reasonable and good faith manner as well as will exceed their authority by being arbitrary and capricious.
Beach Access
Easements (Implied):
1) Massachusetts: private owners have right to exclude.
2) Oregon: Hay – Easement is customary right; has been going on since beginning of state and will continue; public has acquired over the years an easement)
3) New Jersey: Matthews – membership=middle ground; private landowners may not unilaterally bar public access; can’t restrict membership
–Public Trust Doctrine: ownership belongs to the association but they have an obligation to the public
Kelly v. Ivler: “Who’s Easement Is It Anyway?”
Easements (Grant): The meaning and effect of the reservation of an easement will be determined by the intent expressed in the deed, reading its relevant provisions in light of the surrounding circumstances.
Cushman: “15 ft. Wide Road”
Easements (Grant): Every deed conveying land must be construed as also conveying any building privileges or appurtenance to the land conveyed unless such rights are expected
Mutual of Omaha: “Mutual Parking”
Easements (Grant): Lease language (e.g., giving lessee and its employees and customers rights in common with other occupants to use parking spaces) can create an easement appurtenant.
Tulk v. Moxhay: “Tulk-ed away the covenant, but the servitudes got Moxhay!”
Even without privity, a person with notice of a restriction placed upon land will not be allowed to violate its terms.
–A party may violate a contract entered into by his vendor by using the land in an inconsistent manner. If there was a mere agreement and no covenant, a court would enforce it against a party purchasing with notice; so long as an equity is attached by an owner, no one purchasing with notice can stand in a different situation than the original purchaser. Notice of the restriction may be either actual, inquiry, or record. The restriction in the transfer of land need not be embodied in a covenant – an informal contract or agreement is sufficient. Proof of notice is essential.
Shelley v. Kraemer: “Kraemer doesn’t like Blacks”
Private individuals are allowed to discriminate among themselves, but once state enforcement is necessary (in the form of courts), the Equal protection clause is violated, and therefore not allowed. OVERRULED. (see below)
