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Flashcards in 7) Covenants Deck (96):
1

to enforce IRNS against homeowner, need (2)

1) evidence of common plan or scheme

2) notice to that homeowner

2

RC: elements: notice

1) actual 2) inquiry 3) constructive 4) NOTICE NOT REQUIRED FOR BENEFIT TO RUN W LAND JUST FOR BURDEN

3

Fontainebleau Hotel Corp v. 4525 Inc

F: D hotel building 14 story addition that will cast shadow over beach area of P hotel H: no right to free flow of light and air across adjoining land of neighbor (unless zoning)...

4

IRNE: who can sue to enforce?

--owners --HOA if says so in declaration --developer, IF retains parcels (restatement more realxed, anyone can)

5

unreasonable covenant: majority view (CL/W)

strong presumption of reasonability

6

F: HOA suing bank for nonpayment of assn fees which are to maintain common areas H: meets requirements to run w the land. T+C: may not have met old requirements re direct c to land, but this court: it gives them right of use and so appropriate for cost of ammenities to be borne by those who use them, AND privity: HOA can be party to privity even tho not itself owner of nearby land, bc the entity wsa developed by Ps to advance their common interests

Neponsit Property Owners Assn v. Emigrant Industrial Savings Bank

7

Factors that show common plan or scheme

1) presence of restrictions in all or most deeds to property in the area,

2) recorded plat showing restrictions, presence of restrictions in last deed,

3) observance by owners of similar development of their land and conformity to written restrictions,

4) language stating the covenatns are intended to run w the land,

5) recording of declaration sting intended to be mutually enforceable

8

RC elements: notice: constructive notice

deed research, must also search for other deeds from comon grantor around the same time

9

term/not enforce cov: laches

unexcused delay -- cov has bene ignored or breached for substantial period fo time, and delay in enforcing prompted investment, so now would be unconscionable to enforce

10

RC/ES -- SEPARATE analysis of...

benefit and burden (does each run w the land?)

11

Neponsit Property Owners Assn v. Emigrant Industrial Savings Bank

F: HOA suing bank for nonpayment of assn fees which are to maintain common areas H: meets requirements to run w the land. T+C: may not have met old requirements re direct c to land, but this court: it gives them right of use and so appropriate for cost of ammenities to be borne by those who use them, AND privity: HOA can be party to privity even tho not itself owner of nearby land, bc the entity wsa developed by Ps to advance their common interests

12

real covenants: elements: writing

1) SoF compliant 2) usu in deed or lease

13

do noncompete covenants T+C the land?

generally yes

14

remedies "liability rule"

damages

15

Woodide Village Condo Assn v. Jahren

F: D bought condo, declaration subsequently amended to substantial restrictions on leasing it H: court enforces bc legislative intent -- condos are different and courts reluctant to interfere w the k

16

no covenants in gross (?)

msut concern THE LAND not something you come to do on my land

17

IRNS: ways to show common plan or scheme (7)

(not exactly req'd elements tho): --presence of restrictions in all or most deeds to property int eh area --recorded plat showing restrictions --presence of restrictions in last deed --observance by owners of similar development of land and conformity to written restrictions --language stating covenants are intended to run w th eland --recording of declaration showing that covenatns are nitended to be mutually enforceable, providing buyers notice of CCRS (IMPORANT) AND: NOTICE--REQUIRED

18

covenants in gross?

No -- rule against covs in gross

19

simultaneous horizontal privity

old common law requirement

20

term/not enforce cov: acquiesence

benefitted estate has tolerated or failed to object to violations by owner of servient estate

21

equitable servitudes elements

all the same as RC, just dnn privity (iow): 1) writing 2) notice 3) intent 4) touch and concern

22

in privity

transferred title to each other

23

F: subdivision w restricted covenants re lakefront homes, othe rlarge sections dnh specified covenants an dlate rowner tried to build a marina there. H: it's possible for the IRNE to intentionally onl apply to certain areas of the development

Evans v. Pollock

24

relaxed VP:

ok for grantor to retain some interest in land

25

covenants by implication?

rare (contrast: e.b.i) -- can happen if seller fraudulently promises covenant and buyer detrimentally relies, use estoppel theory -- extreme cases like forged deeds

26

term/not enforce cov: release

all parties affected by cov (burdened and benefitted) agree in writing to term the cov

27

term/not enforce cov: language i ninstrument

cov title itself sets time limit in cov, possibly w renewal option

28

F: build high rise hotel w sky bridge vs 16 feet of open space covenant (light, air) H: under state statute, cov should not be enforced--changes in ch/property and neighborhood, impede reasonable use of land for best suited purpose, public interest (taxes) N: MA statute vs CL doctrine -- the statute is anti-enforcement

Blakely v. Gorin

29

strict VP

grantor retains NO interest in land (eg not someone w a life estate)

30

term/not enforce cov: merger

burdened and benefitted estates come under common ownership

31

HOAs: how governed

by the declaration itself --sometimes allows modification of rules by board, sometimes requires supermajority of votes

32

CC&Rs

conditions, covenants, and restrictions

33

limits on convenants: examples of possible reasons why (4)

1) public policy/reasonableness, 2) constitutional violations, discrimination under Fair Housing Act 3) restrictions on alienability 4) claims on unreasonable restraint on trade

34

IRNE: unrestricted lots owned by neighbors, contrast 2 cases

Sanborn v. McLean (NR): Ds want to build gas station behind house, covenants on 53/91 lots. Held: uniform nature of properties created inquiry notice, majority restricted, so, common plan, so, IRNE compare: Riley v. Bear Creek Planning Committee: Ps build snow tunnel, orally knew there'd be restrictiosn but weren't written into plan yet and dn appear in their deed. CA courts: can only enforce if it is written into deed OR declaration recorded w restrictons BEFORE property sold

35

RC: elements: privity

--horizontal --vertical NOTE: HP not required for ben to run w the land, just burden

36

remedies: injunctive

declaration from court to eg stop building

37

Real covenants / equitable servitudes: def

commitments people make in reference to property that bind others and are intended to run w the land

38

F: condo owners has 3 cats inside, silent, clean, sues D HOA over no pets restriction H: reasonableness must be considered vis a vis EVEREONE not any one owner, presumed reasonable, would have to show arbitrary/brudensome so much so that it substantially outseighs benefits to EVERYONE or fundamental public policy (majority)

Nahrstedt v. Lakeside Village Condo Assn

39

term/not enforce cov: changed conditions (3)

1) conditions have changed so drastically, that enforcement wll be of no substantial benefit to dom estates 2) condition changes INSIDE THE NEIGHBORHOOD 3) focus is on benefitted/dom estate, have they lost the benefit? (NOT burdened)

40

term/not enforce cov: undue hardship: aka

relative hardship

41

Real covenants: elements (5)

NOTE: must do separate evaluation for burden and benefit 1) writing 2) notice 3) intent 4) touch and concern 5) privity

42

El Di Inc v. Town of Bethany Beach

F: restrictive cov no alcohol sales, changed conditions: brown bagging, sold other places H: cov has changed so much that justifies eliminating (relig com to tourist area) --> change was significant enough to "render the benefits underlying imposition of the restriction incapable of enjoyment"

43

when do covenants run w the land? (3)

PRESUMED to run, if --benefits owner of neighboring land --touches and concerns --continues to benefit dominant land (similar to e: presumption for appurtenant)

44

remedies: declaratory judgment

the property is yours

45

real covenants, need:

ES + PRIVITY

46

term/not enforce cov: estoppel

reasonable reliance: usu owner of dom estate orally represents to serv estate that she won't enforce the cov, other party detrimentally relies

47

IRNS: purpose

allows for planned communites to exist, covenants that mutually bind and benefit (all parcels intended 3rd party beneficiaries). --mutually enforceable (parties can sue each other)

48

IRNE rship w developer / orig owner (2)

--usu inclues grantor's own covenant -- they will continue to restrict future buyers --if developer dn still own any land usu can't sue for enforcement (unlike the HOA, not a rep of owners)

49

RC elements: notice: inquiry notice

rarer than E. bc RC is a promise NOT to do something, so likely less visually obvious at the property...but some courts have found that eg all the houses look alike = inquiry notice

50

RC elements: intent

in deed--clear language indicating runs w the land (ex. "heirs and assigns"). USU courts hold that if it benefits land, it is presumed to run w the land

51

IRNS: def

WHEN: owner sells parcels w evidence of intent to create common plan or scheme of development, THEN: covenatns made to the seller benefit all parcels w/in the plan AND all parcels w/in the plan are bound by the covenants

52

IRNE: what to do about unrestricted lots? owned by neighbors

buyer usu on constructive notice

53

W: strict VP or relaxed?

STRICT!

54

F: HOA covenant banning black people H: racial HOA covenants are covered by 14th am state action requirement, bc state courts enforce them N: pretty much limited to these facts now bc of very broad application of state action doctrine

Shelley v. Kraimer

55

unreasonable covenant: minority view (restatement)

broader reasonability test that includes public policy considerations

56

term/not enforce cov: prescription

open and notorious use, w/o permission, for statutory period

57

remedies "property rule"

injunctions

58

Evans v. Pollock

F: subdivision w restricted covenants re lakefront homes, othe rlarge sections dnh specified covenants an dlate rowner tried to build a marina there. H: it's possible for the IRNE to intentionally onl apply to certain areas of the development

59

term/not enforce cov: marketable title acts

c easements, must re-record the cov or it goes away

60

RC elements: touch and concern

must connect directly to use of the land -- will benefit dominant estate and future owners

61

limits on covs: reasonableness test W

even if somewhat unreasonable, cov will be enforced if: 1) everyone has notice 2) dn violate pbulic policy

62

term/not enforce cov: statute

sometimes statutes change the standards or specify other ways to get rid of a cov (MA)

63

F: restrictive cov no alcohol sales, changed conditions: brown bagging, sold other places H: cov has changed so much that justifies eliminating (relig com to tourist area) --> change was significant enough to "render the benefits underlying imposition of the restriction incapable of enjoyment"

El Di Inc v. Town of Bethany Beach

64

HOA's suing is...

exception to rule against benefits in gross

65

cov of quiet enjoyment, ex

ex: noisy neighbors (if under LL's control)

66

Real covenants vs. equitable servitudes

1) one elements difference: RC needs privity, ES dn. (so harder to prove RC) 2) different remedies: RC also offers possibility of damages

67

RC elements: notice: inquiry notice--aka

actual implied notice

68

Shelley v. Kramer

F: HOA covenant banning black people H: racial HOA covenants are covered by 14th am state action requirement, bc state courts enforce them N: pretty much limited to these facts now bc of very broad application of state action doctrine

69

instantaneous horizontal privity

--current stadard --moment of privity btwn 2 contracting parties REQUIREMENTS: must be established at time of sale (so NOT jusg agreement btwn neighbors, and not a few days later -- those would just be ks, not covenants that run w the land) (ppl get around this via straw man transactions)

70

factors tending to show NO common plan/scheme

some unrestricted, restrictions not uniform.  

71

horizontal privity: common law requirement

ongoing interest in same land at same time (eg LLT, mortgager/ee, leaser/ee)

72

F: HOA covenant banning black people H: racial HOA covenants are covered by 14th am state action requirement, bc state courts enforce them N: pretty much limited to these facts now bc of very broad application of state action doctrine

Shelley v. Kramer

73

covenants -- 2 elements that DN APPLY TO BENEFITS JUST BURDENS

notice HP

74

term/not enforce cov: unclean hands

benefitted estate (aka person trying to enforce) has itself violated the cov

75

IRNS followed by all courts?

no, sometimes only if restrictions explicit in deed

76

equitable servitudes: remedies

injunctive only

77

Blakely v. Gorin

F: build high rise hotel w sky bridge vs 16 feet of open space covenant (light, air) H: under state statute, cov should not be enforced--changes in ch/property and neighborhood, impede reasonable use of land for best suited purpose, public interest (taxes) N: MA statute vs CL doctrine -- the statute is anti-enforcement

78

Nahrstedt v. Lakeside Village Condo Assn

F: condo owners has 3 cats inside, silent, clean, sues D HOA over no pets restriction H: reasonableness must be considered vis a vis EVEREONE not any one owner, presumed reasonable, would have to show arbitrary/brudensome so much so that it substantially outseighs benefits to EVERYONE or fundamental public policy (majority)

79

IRNS: what's different?

--exception to nl requirements bc dn TC land

80

Vertical privity (in general)

rshp btwn owner and subsequent owners

81

covenants in gross--exception

allowing HOAs to sue (bc they're agents of homeowners)

82

Implied Restricted Negative Servitudes/Easements: why? (3)

--last parcel sold ends up w/o covenant bc orig seller has no remaining land for covenant to benefit --might accidentally leave restrictions off some lots --traditional system problem that later buyers could sue earlier buyers for not following cov (bc they bought on reliance of others) but earlier couldn't sue later)

83

IRNS: requirement

evidence of a common plan or scheme

84

can HOAs sue?

to enfroce covs, yes -- but usually their RTS needs to be stated in deed

85

term/not enforce cov: abandonment

benefitted estate has tolerated violations by owners of OTHER restricted parcels in the area for so long that it seems you've abandoned your cov

86

who has standing to enforce covenants?

usu not some other neighbor -- just the parties and hteir successors (Neponsit important bc gave HOA privity to enforce)

87

14 ways to terminate or not enforce a cov

the big 2: 1) changed conditions 2) undue hardship in common with e. 3) express release 4) by its own terms 5) merger 6) AP/prescription 7) marketable title acts 8) abandonment bad behavior 9) acquiesence 10) unclean hands 11) estoppel 12) laches extra 13) racially restrictive 14) specific state statutes

88

F: P had 2 grocery stores, sold one w noncompete covenant, food desert H: against public policy so won't enforce covenant. 8 pronged reasonability test: intention, impact on consideration, clear, written/actual notice, reasonable re time/area/duration, unreasonable restraint on trade, interferes w public interest, change circumstances make it unreasonable now? (minority)

Daivdson Brothers Inc v. Katz

89

term/not enforce cov: changed conditions -- who do we focus on?

benefitted estate, have they lost benefit? (NOT the burdened estate or extent to which they're burdened)

90

F: D bought condo, declaration subsequently amended to substantial restrictions on leasing it H: court enforces bc legislative intent -- condos are different and courts reluctant to interfere w the k

Woodide Village Condo Assn v. Jahren

91

term/not enforce cov: undue hardship

1) proof of great hardship to servient estate RELATIVE TO SMALL BEN TO DOM ESTATE -- greater by a "considerable magnitude." (if it's just a burden to servient estate, not impressive--it's a covenant! after all)

92

IRNS: notice requirement (3)

relaxed compared to notice requirements in other contexts --inquiry notice when buy in (nature of property) --constructive notice even if it's just in title of nearby deed

93

IRNE: unrestricted lot owned by grantor

determinative: is it on the map/declaraction? (can also depend on if it's in subdivision...)

94

real covenants: elements: writing: exception

sometimes exception for IRNS (eg HOAs)

95

Daivdson Brothers Inc v. Katz

F: P had 2 grocery stores, sold one w noncompete covenant, food desert H: against public policy so won't enforce covenant. 8 pronged reasonability test: intention, impact on consideration, clear, written/actual notice, reasonable re time/area/duration, unreasonable restraint on trade, interferes w public interest, change circumstances make it unreasonable now? (minority)

96

Real Covenants: remedies

damages or injunction