Termination of covenants

Question 1

Cowling v. Colligan (TX)

Answer 1

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.

Question 2

Ways to terminate a real covenant (get out of it and allow lot to be developed commercially in Cowling v. Colligan)

Answer 2

• Waiver
• Changing Use doctrine
• Abandonment
• Express Termination

Question 3

how is this different than easements?

Answer 3

no merger, not items of title so they don’t merge (no direct way here)

Question 4

Express Termination

Answer 4

• 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)

Question 5

Termination by WAIVER

Answer 5

waived (give it up)

-where the convenantee fails to enforce the covenant (church in neighborhood example)

Question 6

will the courts view a waiver of one use to be interpreted as a waiver for another

Answer 6

no. courts tend to view waiver narrowly

ex church hypo- never enforced, so someone could put up a synagogue but not a tanning plant

Question 7

Termination by Abandonment

Answer 7

1) waive covenant AND
2) expess (obj) intent never to enforce it again
(need statement of obj intent)

Question 8

In waiver, is enforcement possible later??

Answer 8

yes, after the improper use terminates

Question 9

in abandonment is enforcement again ever possible

Answer 9

convenient can NEVER be enforced again

Question 10

ex) if we abandon for churches

Answer 10

can never forbid churches againg

Question 11

ex) if waive churches

Answer 11

once joe closes his church , can disallow churches again

Question 12

Non-enforcement under Changing Use Doctrine

Answer 12

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

Question 13

internal looking doctrine

non-enforcement of CUD

Answer 13

look inside restrictive neighborhood, not outside

Question 14

can u have the new covenant rewritten?

Answer 14

no!

can enforce or not enforce. cant use doctrine to change it. (*reason why covenants need to be amended)

Question 15

Is there a right to a decree at equity?

Answer 15

No. (would have to go to c/l court)

Question 16

Does the CUD terminate a real covenant?

Answer 16

NO. —just makes it unenforceable in equity

Question 17

Does zoning normally affect any real covenents on a parcel?

Answer 17

NO.

land must be used in way consistent w/zoning & the covenants

Question 18

what can be used to establish the applicalbility of the CUD? (application on exams)

Answer 18

Zoning changes

Question 19

Does the changing use doctrine apply to easements?

Answer 19

NO

Question 20

the CUD applies to ___&___-?

Answer 20

real covenants & equitable servitudes.

Question 21

real covenants that violate consitutional or statutory law will ______?

Answer 21

NOT be enforced

Question 22

will a state strike down a clause bases on public policy if that not policy is not expressed in the law\?

Answer 22

Yes, some states will

Question 23

The states that treat real covenants like contracts will construct them ______?

Answer 23

BROADLY (as necessary to implement the INTENT of the parties)

Question 24

States that treat real covenants as a restraint on alienation will construct them ____?

Answer 24

NARROWLY (only prohibiting that which is explicitly expressed)

Question 25

real covenants can be subject to amendment provided the entity w/power to make amendments is ______?

Answer 25

perpetual

• committee
• vote of the dominant estate

Question 26

most states require that the power to amend be used ______, _______, & ________.

Answer 26

-reasonably, in good faith & without arbitrary or capricious behavior.

Question 27

Real covenants can be terminated by _____, ____ or ____?

Answer 27

express release, waiver of eforcement, abandonment (of or by dominant estate)

Question 28

real covenants are made non-enforceable in equity by _________?

Answer 28

the changing use doctrine