Termination of covenants Flashcards
Cowling v. Colligan (TX)
facts: Colligan (defendant) proposed to use a subdivision lot restricted by covenants for commercial purposes. Cowling (plaintiff) represented a class of subdivision property owners seeking a declaratory judgment as to the validity and enforceability of a covenant prohibiting the use of subdivision property for anything other than residential purposes.
rule: the court must consider the detriment to other subdivision property owners when determining whether to exempt a particular parcel from the operation of a restrictive covenant.
Ways to terminate a real covenant (get out of it and allow lot to be developed commercially in Cowling v. Colligan)
- Waiver
- Changing Use doctrine
- Abandonment
- Express Termination
how is this different than easements?
no merger, not items of title so they don’t merge (no direct way here)
Express Termination
- If time period given & expires (common commercially)
- voluntary release each other (uncommon)
- Law- some states require a set period of time will expressly terminate (MASS)
Termination by WAIVER
waived (give it up)
-where the convenantee fails to enforce the covenant (church in neighborhood example)
will the courts view a waiver of one use to be interpreted as a waiver for another
no. courts tend to view waiver narrowly
ex church hypo- never enforced, so someone could put up a synagogue but not a tanning plant
Termination by Abandonment
1) waive covenant AND
2) expess (obj) intent never to enforce it again
(need statement of obj intent)
In waiver, is enforcement possible later??
yes, after the improper use terminates
in abandonment is enforcement again ever possible
convenient can NEVER be enforced again
ex) if we abandon for churches
can never forbid churches againg
ex) if waive churches
once joe closes his church , can disallow churches again
Non-enforcement under Changing Use Doctrine
1) the use of land around the restricted lot has changed so much from the orig. req. that enforcing it is not justified.
2) change must be inside development, not outside
internal looking doctrine
non-enforcement of CUD
look inside restrictive neighborhood, not outside
can u have the new covenant rewritten?
no!
can enforce or not enforce. cant use doctrine to change it. (*reason why covenants need to be amended)
Is there a right to a decree at equity?
No. (would have to go to c/l court)
Does the CUD terminate a real covenant?
NO. —just makes it unenforceable in equity
Does zoning normally affect any real covenents on a parcel?
NO.
land must be used in way consistent w/zoning & the covenants
what can be used to establish the applicalbility of the CUD? (application on exams)
Zoning changes
Does the changing use doctrine apply to easements?
NO
the CUD applies to ___&___-?
real covenants & equitable servitudes.
real covenants that violate consitutional or statutory law will ______?
NOT be enforced
will a state strike down a clause bases on public policy if that not policy is not expressed in the law\?
Yes, some states will
The states that treat real covenants like contracts will construct them ______?
BROADLY (as necessary to implement the INTENT of the parties)
States that treat real covenants as a restraint on alienation will construct them ____?
NARROWLY (only prohibiting that which is explicitly expressed)
real covenants can be subject to amendment provided the entity w/power to make amendments is ______?
perpetual
- committee
- vote of the dominant estate
most states require that the power to amend be used ______, _______, & ________.
-reasonably, in good faith & without arbitrary or capricious behavior.
Real covenants can be terminated by _____, ____ or ____?
express release, waiver of eforcement, abandonment (of or by dominant estate)
real covenants are made non-enforceable in equity by _________?
the changing use doctrine
