Part 7 – Private Land Use Controls: Easements, Covenants, and Homeowners
Associations
3/14 & 3/17 - 1. Creation of Easements I: Willard (express), Holbrook (prescriptive
and estoppel): p761-775 (skip note on licenses)
 Servitudes: easements, real covenants, equitable servitudes
 Easements:
o Negative easement: someone else’s power to restrict what you do with your
land; power to forbit another from acting on their own land in a certain way
 Never inquiry notice bc you can’t see it
o Affirmative easement: right to enter and perform an act on the (someone
else’s) land
o Appurtenant: the right flows from ownership of a piece of a land, most
common type of easement
 If unclear which type of easement is intended by the parties, law
construes in favor of an easement appurtenant.
o In gross: the right is owned personally
o Dominant estate: ownership of this land entitles the owner to the easement
rights
o Servient estate: the land getting used or being entered
 If there is an easement, is the servient owner on notice of it? if so, the
servient owner must respect it. if not, they don’t have to.
o Created by…express, estoppel, prescription, prior existing use, necessity
 Real covenants vs. equitable servitudes – difference is remedy, not the actual
restriction, difference stems from facts of creation (not language used) so given
restriction can be enforceable as either one (basically depending on remedy sought)
or as both (such that both remedies might be available for their violation)
o Real covenant – monetary damages, “remedy at law”
o Equitable servitudes – injunction, “equitable remedy”
o Successors can continue to enforce depending on privity; good bc law is blunt
instrument, often more broadly applicable, can’t solve everything; good for
arrangements to endure past the ppl who make them, good to enable ppl to
regulate themselves sometimes (bc law can’t always solve every problem
easily)
 If arrangements weren’t enforceable by successors, there’d also be
little reason to make them
o None of these unsettle title, ownership; so wise grantor would embed
covenants rather than ownership provisions (bc they sidestep rule against
perpetuities)
 Real Covenant:
o Enforceable at law: for monetary damages
o Agreement btwn property owners can be enforceable as a real covenant for
monetary damages if:
o To be enforceable:
 In writing (statute of frauds applies at law)
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Therefore, there cannot be an ‘implied real covenant’ bc
implied would mean not in writing
 intent to bind successors
 touches and concerns the land
 privity of estate (trickiest part)
 For burden to run to successor at law (for successor to face
monetary damages for violating agreement), original parties
need to have been in horizontal privity & allegedly burdened
party must have been in vertical privity w/ original contracting
owner in same estate
 For benefit to run: vertical in same or lesser estate (person
claiming benefit/successor must be in vertical privity with the
other person)
o Don’t need horizontal privity & doesn’t need to be the
same estate
o And AP again doesn’t work bc AP isn’t privity
o “This agreement is enforceable as a real covenant.” – proper language …
“agreement is enforceable as a ___”
o Burden vs. benefit – always land burdened by some kind of benefit; parcel
of land benefited by restriction, flow from ownership of land (similar to
appurtenant easement except not related to access of property)
 Burden – restriction on use of land (but not actual access to land)
 Benefit – power to enforce that restriction, to sue if that restriction is
being violated & to get whatever remedy is available
Horizontal privity: privity of estate btwn the original covenanting parties, grantorgrantee relationship between original contracting parties
o Traditionally, horizontal privity of estate is required for the burden of a
covenant to run at law, but that horizontal privity is not required for the
benefit to run
Vertical privity: privity of estate btwn one of the covenanting parties & a successor
in interest, relationship btwn one of covenanting parties & their successor; means
that successor is taking title/succeeding in interest from original contracting party
o Burden – covenant is enforceable only against someone who has succeeded
to the same estate as that of the original promisor
o Adverse possessor does not succeed to the original owner’s estate but takes a
new title by operation of law (so adverse possessor
o Even though it has to be in writing, doesn’t mean that it will be recorded;
therefore, doesn’t mean that successor would have notice/be aware of the
real covenant
Equitable Servitudes:
o Enforceable at equity: for injunctive relief
o Requires:
 Intent to bind successors
 Touches and concerns the land
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o For burden to run: successor must have notice (actual, record, or inquiry
notice)
 No (horizontal or vertical) privity required but notice is required
o Doesn’t need to be in writing (though it of course can be) bc statute of frauds
doesn’t apply to equity
License – legal permission, someone can give someone license to go on their land;
permission can also always be rescinded; licenses are revokable
Easements (as interests in land) are usually created in writing, but can also be
circumstantially/contextually implied or created contextually by prescription
o Express easement: easement in writing, easiest one to create
Reservation – provision in a deed creating some new servitude which did not exist
before as an independent interest
Exception: a provision in a deed that excludes from the grant some preexisting
servitude on the land
Willard v. First Church of Christ, Scientist (SC of CA 1972):
o Facts: McGuigan owned lots 19 and 20 across the street from her church.
While she owns the land, she lets the church use lot 20 for parking during
services (not written, verbally permits.) McGuigan sells lot 19 to Peterson
and then he wants to sell both lots to Willard (P). Peterson wants to get Lot
20 from McGuigan so he can sell both to Willard.
 McGuigan is ok to sell lot 20 to Willard but wants to make sure the
church can keep using it for parking, so she creates a written
easement (determinable, appurtenant, affirmative easement – runs
with the land, entering and doing an act.)
 Express, affirmative, appurtenant easement: “subject to an
easement for automobile parking during church hours for the
benefit of the church on the property at the SW corner…to run
w/ the land only so long as the property for whose benefit the
easement is given is used for church purposes.”
o “so long as” – fee simple determinable language;
easement is appurtenant so long as church owns land, if
church moves away, church can’t move right of access
w/ it wherever it ends up moving; easement is
appurtenant to this piece of land but also ends once
church leaves
 Lot 20 is servient estate (getting parked on) & church property
is dominant estate
 McGuigan records the deed and sells lot 20 to Peterson who sells it to
Willard (but Willard’s deed didn’t mention the easement.) Willard
also wasn’t actually told of easement.
 When Willard learned of the easement, he sued the church to
terminate the easement/to allege there is no easement at all.
 Trial court there was no easement created, bc, notwithstanding
language of express easement, court held that someone can only
reserve for yourself easement in that land, person can’t reserve for a
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third party; court held that you can’t reserve an easement for a third
party.
o Issue: Can you reserve an easement for a third party (the church)?
 Whether a grantor may, in deeding real property to one person,
effectively reserve an interest in the property to another
o Holding and Reasoning: Reverses trial court. Yes, McGuigan’s easement can
be reserved to the church (third-party.)
 At common law, you cannot do this the court breaks from common
law rule
 Willard had inquiry notice - he saw people from the church parked on
lot 20
 Willard was on record notice of easement even though it wasn’t
written on his deed from Peterson & he wasn’t told of it. Easement
was included in Peterson’s deed from McGuigan. Peterson’s deed
created notice (record notice) if Willard was diligent and looked back
in the chain of title, he would have seen the easement.
 Even though the deed didn’t have the easement written in it, it
wouldn’t have been hard for Willard to determine it existed
 Appurtenant easements run with the property!
 Dominant parcel = church’s land
 Servient parcel = Lot 20
 Some states don’t follow this holding – you can only reserve
land/easement for yourself, can’t for third parties; to give to third
party, you have to convey title to person you want to have easement
to who can then reserve easement for the third party.
Easement by estoppel: need permission from servient landowner & person
invested in reliance on that permission, i.e. improve the parcel of land
o Reliance can transform revokable license to irrevocable easement by
estoppel
o Reliance must be reasonable (ofc)
Holbrook v. Taylor (SC of KY 1976):
o Rule: A license cannot be revoked after the licensee has erected
improvements on the land at considerable expense while relying on the
license.
o Facts: Holbrook owned a road and granted permission to a nearby mine to
use it. After the mine closed, Holbrook built a house on the property and
granted tenants use of the road. Taylor bought the land next door.
Holbrooks granted the Taylors permission to use the road for the
machinery, material, and other activities necessary for the construction of
the house and general improvements to the land. After the house was built,
the Taylors invested money to improve the road with Holbrook’s
permission. Soon after, a dispute arose and the Holbrooks built a steel
cable across the road to prevent the Taylors from using it. Taylors sued.
o Issue: Whether a landowner may revoke permission to use and make
improvements to his land if the licensee relies on that permission to use
and make costly improvements to the land?
o Holding and Reasoning: No – there is a prescriptive easement
 Court must look to easement by estoppel
 Because the dominant owner (Taylors) received permission and
invested in reliance on that permission, the servient owner
(Holbrook) is estopped from withdrawing that permission.
 If the Holbrooks sold property, the new buyers would have to
respect the easement if they had notice of it.
 It’s appurtenant, (almost) all prescriptive easements are
appurtenant so once established, the easement runs w/ the land.
So new dominant land owner would be entitled to the same access.
 Revocation of the license under these circumstances would
constitute unjust enrichment for the landowner.
 Benefits of easement must flow w/ land to new Taylors/owners bc
if it didn’t, then new person would have to re-negotiate every time.
 If you want to give limited permission, you must make it clear (“one
week only”)
2. Creation of Easements II: Van Sandt (implication), Othen (necessity): p777-783
(including note 1), p785-792
 Van Sandt v. Royster (SC of KS 1958):
o Facts:
 3 lots (19, 20, 4) – all 3 used to be owned as 1 piece of property by
Laura Bailey. When she owned all of them, city constructed public
sewer & she built sewer drain from eastern-most plot to public sewer.
When she sold lots 19 & 20, she didn’t reserve for herself an express
easement for her to have sewage pipe run underground beneath the
parcels (but she easily could have).
 New owner would need to have notice prior to owning property in
order to object to marketability of the title. If court concludes you had
inquiry notice, it doesn’t matter whether you actually knew, as long as
you reasonably could have known.
 On lot 19/Van Sandt lot – city’s sewage leaked into their basement.
First time van Sandt learned of sewage pipe. Van Sandt sewed Royster
(who owned lot 20) to stop sending sewage across the property. Van
Sandt wants Court to say that there’s no easement at all/that Royster
has no ability to send sewage across under Van Sandt’s property
o Holding:
 Roysters themselves didn’t invest or pay anything, but there was also
no permission. Van Sandts never gave Roysters permission – so no
permission & no reliance, nothing in facts that relates to easement by
estoppel.
 Easement implied by prior existing use –
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1) severance of title to land initially undivided; land need to be
once owned as a whole thing and then later divided up; prior
“unity of ownership” and then land was severed & cut up
 2) an apparent, existing, and continuing use of one parcel at the
time of severance – requires “quasi-easement” prior to
severance, that before land was divided, owner was using part
of the land to benefit another part of the land (but quasieasement, not real easement, bc owner already owned the
whole thing)
 3) reasonable necessity for the use at the time of severance;
evidence that the parties (buyer & seller of land when it was
divided up) intended for that use to continue after the land was
divided up; that the use continuing is necessary is great,
sometimes conclusive evidence that the parties intended it for
continue
 Here: 1) There was a prior use of ownership, 2) there was “quasieasement” (Bailey using part of land to run sewer to benefit part of
land where house was), & 3) evidence that original owners (pre-Van
Sandt) and Bailey wanted land to be continued to be used in way it
was post severance
 So court concludes: Reasonable necessity fo pipe continuing to be in
use is strong evidence that parties intended or would’ve intended that
it continue being used when it was divided up
 Quasi-easement becomes actual easement bc it was reasonably
necessary for it to continue & parties wanted it to continue
 So Van Sandt loses on the fact that there is easement
 Court says that he had inquiry notice bc he had modern plumbing in
his house (i.e. him having plumbing should make him recognize that
there has to be a sewage system) – so Van Sandts are obligated to
respect the easement bc there’s inquiry notice
 Is this really reasonable though?! Not necessarily reasonable to
assume that just bc he has modern plumbing (i.e. a toilet), he
could know/assume that the sewage system went in direction
of his house
 However, realistically, Van Sandt has to lose; bc the plumbing must go
in Van Sandt’s direction (bc city/municipal sewage system) is on
other side of Van Sandt’s property. If court said that Royster won, then
where would sewage go?
Othen v. Rosier (SC of TX 1950):
o Facts: problem w/Othen’s property is that it’s landlocked (isolated from the
road by someone else’s property). Rosiers take care of lane bc it’s their
property (and they allow a renter of their’s to use it), i.e. they’re not taking
care of it as a favor to Othen. Eventually, there’s some erosion damage & to
fix damage and protect the rest of their property, the Rosiers built levee that
caused the path to become somewhat muddy & Othen can’t get out w/o
riding a horse (so he really can get out in a relatively reasonable way. but
court ignores this fact).
o Issue: Othen wants 1) injunction preventing them from maintaining
levee/enjoin Rosiers from obstructing easement bc 2) he wants court to say
he has easement/for court to declare easement by necessity (bc if he has
easement by necessity, then servient landowner couldn’t obstruct his access).
o Holding:
 Pathway built
 Easement by prior existing use requires a use to have existed prior
(to the severing of the lots). If it didn’t exist, then there is no easement
by prior existing use. It’s the second element of the test that’s lacking
– there was no quasi-easement before the land was severed.
 Easement by necessity – about new needs, not about old needs; 3
requirements/three-part test; there isn’t a path already
 1) Unity of ownership prior to land being severed (same as
easement by prior existing use)
 2) use in question is a necessity, rather than a convenience (i.e.
being landlocked & needing road access is a necessity)
 3) that the necessity existed at the time of severance of the two
estates; that the necessity was created by the severance (the
necessity didn’t exist prior to land being severed – so it’s a new
necessity, not one that already existed)
 Here, element #1 is satisfied, court says that there is a necessity
(element #2 satisfied), but element #3 isn’t satisfied bc there was a
series of severances & looking to very first severing of the unified
parcel, the need didn’t exist/arise at the first severing
 **Necessity only counts if the first severing of the land is what
creates the need
 Here, burden of proof is on Othen (person asserting necessity of
easement) & he hasn’t satisfied that burden of proving that necessity
arose from first severing, rather than a later severing
 Bc he didn’t prove necessity arose from first severing, Othen loses.
 Did Othen satisfy adverse possession? Relatively continuous, not
exclusive (bc tenant & Rosiers also use the path), not under claim of
right & not adverse (bc it was permissive, bc Rosiers knew Othen was
there & shared the path w/ him – so court infers permission from
‘silent sharing’ aka silence and sharing)
 Court doesn’t understand what easement is! Court’s logic
makes it almost impossible for anyone to have prescriptive
easement, bc either you share it with servient landowner and
thus no easement or you don’t share it and adversely possess
title to the land
 Exclusivity in context of prescriptive easements = means
just you (dominant landowner) & servient landowner; the fac
that the servient landowner is the only other user is fine for
claim of exclusivity
 So Othen should have won, unless you think that silence can
actually constitute permission
o Elements are straightforward bc similar to AP; but not about claiming
possession, instead about claiming an easement
3/16 - 3. Recap and Scope of Easements: Brown: p807-812, 815-818 (notes 1,2,6,7),
Easements Hypo (canvas) & take a glance at “Easements ‘Am I The A-Hole’ Reddit
Submission” (on canvas) for another hypo we might discuss
 Brown v. Voss (SC of WA 1986):
o Facts: Former owner of A granted former owner of B an easement for
purposes of accessing B (appurtenant, express easement). Now, Voss owns
Parcel A and Brown own Parcel B. Brown purchases Parcel C and wants to
build a house that straddles parcels B and C, wants to continue using the
easement to access new house. Voss says no and obstructs Brown’s
use/access. Brown sues, contends that Brown has right of access that Voss
is interfering.
 Voss has argument for why they are entitled to obstruct easement –
argues that Browns are not using easement for access to parcel B,
that they’re using easement to access non-dominant land (parcel C),
with no appurtenant easement attached to it.
o Issue: Whether it is an actionable misuse of an easement, intended to
grant access to one plot of land, to access a second adjoining plot of land.
o Holding: Yes, this is a misuse of the easement.
 You may not extend appurtenant easements to other parcels
 However, the court still orders the Voss’s to let the Browns use
the easement (with nominal damages)
 Court weighed the burdens and compared the equities
o Yes, easement for B + C = No damage to Voss
o No easement for B + C = extreme harm to Brown
 Court defers to trial court’s judgement that an injunction is
too harsh
 Voss gets moral victory of winning, but remedy-wise, gets
nothing that they wanted. It’s a “petty squabble btwn 2
neighbors who should just grow up.” No damage to Voss’s
land, no increase in travel volume, etc.
 Brown built entire house in reliance on driveway. Voss
knew that Brown was doing this, yet still allowed them to
build house & spend money with the intention of still
blocking Brown from accessing property.
 In deciding remedy, court considers conduct of the parties,
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it’s not fair & also not efficient bc it results in investment
w/o value.
 Arguments in favor of an injunction:
 If there isn’t a harsh rule, people will continue to do what
the Brown’s did and just pay $1
 If they knew they were going to be enjoined, they would
probably try and negotiate to buy access
 Arguments in favor of damages:
 Liability rules are more efficient than property rules
because of high costs
 It would be unfair to make the Browns move/tear down the
whole thing
o If ppl like the Browns know that
all they’d have to do is just pay
some damages (i.e. light penalty),
it would almost incentivize ppl to
not follow easement.
o Rule: An easement appurtenant
to an estate may not be extended
to other adjoining
Reddit post:
o Not Van Sandt bc no prior unity
of ownership. But if there had
been, hypo would be exactly Van
Sandt.
o Neighbors clearly have easement by estoppel but for him to be bound by
it, he has to have notice of the
easement.
o Is he on inquiry notice?
Express easements last forever. Implied
easements also last forever except that
easements by necessity end if the
necessity ends.
o i.e. if property is no longer landlocked bc county builds road on
other side, then need is no longer
there so easement would end.
o Other obvious way (any type of)
easement can end is if dominant
owner releases the easement. Must
be in writing (according to statute
of frauds).
o Easement can also end if either owner ends up becoming owner of the
other parcel. i.e. if the servient owner acquires the dominant land or vice
versa, such that parcels are essential brought into unified ownership, then
easements end bc there’s no easement on your own property. If you
redivide the land later, you’d then have to star all over again establishing
new easement.
o Easements can also end by estoppel. If dominant owner implies they’re
not relying on easement anymore, and then servient owner does
something to that land, the dominant owner can be estopped from using
that easement bc dominant owner made representation that they were no
longer reliant on easement.
o Can also end by AP – i.e. if servient owner obstructs dominant owner’s use
for 10+ years (and satisfies other elements), then servient owner can take
possession back via AP.
 Easements can end via: Merger of parcels, release of the easement, estoppel &
AP.
HYPO: Michael Scott owned a piece of waterfront property. Michael subdivided the
parcel and conveyed portion “A” to Pam and Jim Halpert, keeping portion “B” for
himself. Michael built a house on B and Pam and Jim built their own house on A. Pam and
Jim constructed a paved driveway from the road to that house. Michael built and used a
dock to access his house on B by boat. Michael sold lot B and the house he had built to
Dwight Schrute. Dwight decided to pave a driveway from the road through A to the house
on B. Pam and Jim told him to stop paving and using that path, but Dwight continued.
Once the path was paved, Dwight opened a beet farm on B and used the path to have beet
delivery trucks coming and going every day. Beets do not travel well by water, so the path
was integral to the success of Dwight’s beet farm business. It is now 11 years later. Pam
and Jim sue Dwight, seeking an injunction against his use of the path across A, as well as
damages. Dwight argues that he has an easement across A. The SoL for an ejectment
action is 10 years. This JDX also follows the majority rule for claim of title element of AP
claims.
 Dwight has no express easement because there is no writing
 Easement by necessity:
o Dwight's argument is that he passes the first two elements
 Element # 1: The land was once unified under a common ownerMichael
 First element is indisputably met
 **when elements are indisputably met, we should say that.
If it’s not a black/white issue, we should argue both sides
& then resolve the dispute.
 Element #2: This necessity also arose because of the severance; it is
necessary for him because of his beet business and him alone to have
road access. Bc of the way Michael severed land, it created this
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obstacle and it’s unreasonable to expect someone to only access their
home/property via water w/o access to a road.
 Necessity is new, not already being met, and caused by the
severance
 Forgetting about beet business, he’s land-locked & this existed
at the time of the severance (bc the severance created this
issue) – a necessity would be that he needs road access
o Pam and Jim's argument:
 It was not actually needed at the time of the severance; Michael was
able to exist on the property without road access
 it’s not a necessity bc Michael didn’t do this before but Michael
also didn’t have beet business
 Dwight could respond back that it’s still not reasonable &
Michael wasn’t reasonable in just going in and out of his home
via water. – Dwight has stronger argument here that it’s
unreasonable to rely on only water access to get in and out of
home when home isn’t on an island.
 The beet farm argument was not a need that existed at the time of the
severance, Dwight knew the property did not have road access
and he still chose to grow his farm there. He had idiosyncratic need to
transport beets out of property, but he still picked that property.
 Having a beet farm is just not a necessity!! Why does he need to have a
beet farm in the first place? A necessity for what someone wants to
do with the land is not the same thing as an objective, relatively
universal (for anybody) necessity.
 Choosing beet business as premise for claim of necessity is
weaker argument. Beet business is not something that anyone
needs to do on this parcel.
Prior existing use easement:
o When Michael was the owner, he did not have the beet business, so he did
not need the road access and he was using the boat, so he was not using the
land to get to his house
o There was no use of Jim and Pam's lot prior to severance so Dwight definitely
loses this one
Easement by estoppel:
o Landowner has to have given permission to use the land and that person has
to have reasonably relied on the permission
o Pam and Jim's argument: factually, they never gave Dwight any permission,
so he loses
 Even if silence is meant to be permission, Dwight has to show that
reliance is reasonable, and he invested so much on a thin reliance so it
may be unreasonable
 If silence was permission always, there would be no such thing
as prescriptive easement (AP) because the owner would
constructively be giving permission always with silence
Legally, they could argue that his reliance was unreasonable, bc he
was aware that he said no the one time. Even if silence, it’s still
unreasonable for him to invest so much premised on silence. And
even if they were silent, they still never affirmatively gave him
permission.
o Dwight's argument: Jim and pam did give him permission when they failed to
object after he built the road and then he relied on this because he built a
farm and a house since he had the road
 Cite Othen, there is implied permission in the fact that the servient
landowner failed to object
Prescriptive easement (AP):
o Dwight’s argument: there needs to be a right of entry and there was no
permission (solid claim for prescriptive easement)
 Was his use of the property open and notorious? yes
 It is good for him that they did not give him permission
 They saw, or reasonably could have seen, his use of beet trucks
regularly.
 Was it continuous for a significant amount of time? Yes
 Statutory period is 10 years, he used continuously for 11.
 Was his use of the driveway actual and exclusive? Yes, no one else
used it (even under Othen’s misunderstanding about what exclusive
is).
 Probably exclusive. Not an issue that Pam & Jim could also use
this.
 Claim of right: it was not permissive, and his conduct was that he
behaved as a person with an easement for 11 years
 Majority rule – CT rule, look at conduct, rather than state of
mind.
 If he had permission, it wasn’t adverse.
 If NY, you need reasonable basis for good faith belief. Question would
be whether a reasonable person could have thought they had an
easement here. Likely not.
o Pam and Jim have no counter argument, they should have ejected him years
ago
 They could’ve written down & required something in exchange for an
express easement.
Scope of prescriptive easement – Use must be consistent w/ the general kind of
use by which the easement was created & w/ what the servient owner might
reasonably expect to lose by failing to interrupt the adverse use.
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3/18 - 5. Enforcement of Covenants: Neponsit: 843-851
 Neponsit Property Owners’ Ass’n v. Emigrant Industrial Savings Bank (CoA N
1938):
o Facts: covenant shall run w/ the land “when they shall cease and determine”
o What doesn’t touch & concern the land/flow to successors:
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 Covenant/obligation to pay sum of money
 Obligations to perform affirmative acts
o What does touch & concern the land:
 **Things that restrict your use of the land/limit what you can do w/
or on the land
 Matters what the money is for; money purchases property interests so
dues-paying obligations does ‘touch and concern’ the land
 ‘paying dues in exchange for property’ – paying rent, for example
 Privity of estate is property relationship w/ assignee’s
obligation to pay rent due to relationship
 Privity of estate – w/ obligations that ‘touch and concern’ the
land
o What is necessary for benefit of equitable servitude to run to successors
 Sometimes nothing, sometimes person claiming benefits must have
been in vertical party with original benefiting party
o HOA is effectively in “vertical privity” w/ developer:
 HOA as representative of all benefited homeowners has the benefit &
the homeowners don’t. so HOA gets benefit of all individual
homeowners who are in individual privity w/ the developer.
What makes benefit run in equitable servitudes? Still no consensus
o Some people say there are no rules on benefit side; that benefit runs to
whoever the original parties said/agreed the benefit could run to
o In NY & other places, you need vertical privity, intent, and touch and concern
on the benefit side.
 Whereas for burden to run, you don’t need privity at all.
 Makes it harder for benefit to run than for burden to run
 there can only be so many ppl in vertical privity at one point…
3/21 - 6. Implied Equitable Servitudes: Sanborn: p854-859
 Sanborn v. McLean (SC of MI 1925):
o Rule: where the owner of 2+ related lots conveys one w/ restrictions for the
benefit of the retained lot(s), the restrictions are deemed to apply also to the
retained lot(s).
o Facts:
 McLeans – allegedly burdened party, land originally came from
McLaughlins (developers)
 McLaughlins owned big parcel of vacant land that they divided into a
bunch of smaller lots, sold for residential purposes only
 some deeds had that expressed restriction, but some didn’t
 we know that McLaughlins intended to develop a residential
community, they had a plan to do so, manifested that plan by
writing down in some of the deeds ‘for resident purposes only,’
no good reason as to why they didn’t write this in all of the
deeds
McLeans wanted to build a gas station on their land, inconsistent w/
residential purpose/plan
 No one would want to live around a gas station
 McLeans are first lot to try to deviate from this plan, but their
deed doesn’t say anything about this limitation, and their chain
of title didn’t have any limitation/restriction so even if there
were an agreement binding their property, they argue they
would lack record notice & they lack actual notice
 Bc no writing applicable to parcel, there is no/can’t be a real
covenant
 But they argue that there can’t be an equitable servitude in any
way
 Sanborns try to sue to enforce servitude that may not exist; their
record/chain of title doesn’t indicate any benefit with respect to that
particular piece of land
o Holding:
 McLeans still lose, still can’t build gas station
 Implied equitable servitude (or “implied negative reciprocal
easement”/implied reciprocal equitable servitude)
 ***For court to enforce the implied equitable servitude, these 3
requirements must be satisfied:
 1) the land derives from an original common
owner/developer
 2) a plan that the common owner had w/ respect to parcel
that’s been subdivided/common/ owner had a plan
 3) the first deed owner writes must includes the restrictions
o Common owner sold a lot that expressly manifested
that plan in terms of restrictions
 **Then, going forward, every subsequent lot going forward
impliedly (of that pool of lots) bears all of the same
restrictions & everyone in that community/everyone who
owns those lots has the right to enforce the benefit among
everyone else
 Plan covers all the parcels & everyone
 If common owner doesn’t write restriction in first deed but writes it in
the third deed, for example, then first two deeds aren’t restricted but
third deed & all other deeds following that are bound by restriction
 Court will imply existence of equitable servitude only if there is a
plan
 bc there must me a plan, something somewhere must be
evidence/in writing (but not the equitable servitude bc that’s
implied):
o other deeds w/ this restriction: the fact that other
deeds had this restriction –by including restrictions that
manifest developer’s plan in some/other deeds

o advertisements: ads from when marketing/selling the
property can indicate developer’s plan
o maps: a map drawn by the developer is very important
– developer’s map of the lots might have little houses, or
at least would illustrate the developer’s plan
 indicate that developer imposed these restrictions/burdened
the whole community as a way of benefiting the whole
community – which is why the intent to have the restriction
apply to everyone is more evident/apparent
 here, because there are other deeds w/ the restrictions, court is able
to acknowledge that developer had this plan & imply existence of this
equitable servitude
 notice – McLean’s chain of title did not indicate any restriction on
their title, but via inquiry notice, it’s clear that all of the lots have
houses on them; seeing the uniformity in neighborhood should make
you question/wonder why that’s the case;
 inquiry notice is just noticing the uniformity of community,
uniformity is enough to get someone to wonder why there’s
uniformity & recognize that there’s a plan or at least ask about
the plan
 this should make person want to inquire about this; and in
looking up chain of title, you find McLaughlin (your grantor)
who is same grantor as all of your neighbors, which should
lead you to your neighbor’s deeds and then you can see that all
of your neighbors have same restriction
o Why do Sanborns get to sue about this/have the right to sue about this?
 McLeans were buying land already burdened by this reciprocal
servitude & that Sanborns already had benefit when the developer
created the restriction
 Basically A & Sanborns are in vertical privity; A & McLeans are in
horizontal privity
 McLean’s land did not become burdened when McLean bought it;
McLean’s land had been burdened long ago from the time the
Sanborns bought their land (and that’s also when the Sanborns then
burdened everyone else)
3/22 - 7. Restrictive Covenants & Termination of Covenants: Shelley, Western Land:
p859-869 (required: also look over these materials from the later stages of the Lee
Monument litigation: Court’s TRO on canvas & Order Lifting TRO on canvas)
 Illegal covenants
 How changed conditions or circumstances impact the enforceability of covenants
 Shelley v. Kraemer (SCOTUS 1948)
o Rule: state court enforcement of a racially restrictive covenant constitutes
state action that violates Equal Protection Clause of 14th Amendment

o Issue: validity of restrictive covenant w/ purpose of exclusion of ppl of
“designated race or color from the ownership or occupancy of real property”
o Facts:
 Shelleys (who are Black) buy property from Fitzgeralds, Kraemers
(neighbors) sue to get injunction that bars Shelley from occupying
property/that enforces the covenant. Kraemers can sue bc they own
benefitted land, and invoke benefit by suing to enforce covenant
 This is expressly reciprocal servitude bc 30/39 property owners
signed agreement binding themselves to all be bound and benefitted
by covenant for 50 years
 Covenant not enforceable as real covenant for monetary damages bc
there is no horizontal privity btwn neighbors
 No actual notice (at least Shellyes did not have actual notice) but
Fitzgeralds (the white sellers) probably did have actual notice, but
probably inquiry notice (look around all-white neighborhood)
 This was written agreement in their deeds & presumably recorded; if
so, there’d be record notice
 So no real dispute that the Shelleys had constructive notice of
restriction
o Holding:
 So there’s notice, intent, and restriction does ‘touch and concern the
land’ bc it restricts how land can be occupied – so all 3 elements
necessary to impose burden on the Shelleys are present & according
equitable servitude law, it’s valid
 But argument that it doesn’t ‘touch and concern the land’ bc
covenant restricts ownership rather than actual occupancy –
i.e. in theory, if Shelleys wanted to own the property and then
rent it to white family, that’s presumably okay
 Covenants are private agreements btwn people, not btwn ppl & govt
so agreements are constitutionally ok btwn ppl bc the constitution
does not regulate private ppl, only state action & federal govt
 So 14th amendment doesn’t affect/regulate this covenant
 But court held that if a court were to enforce these agreements, that
would constitute governmental action that the constitution prohibits
 **these agreements are permissible to enter into but
impermissible to enforce in court, which deprives them of
significant portion of their effect (but not all of their effect bc ppl can
still write them down, and they still serve as signal of hostility to
potential buyers)
o Many portions of country are still burdened by racially restrictive covenant
but they are not really enforceable
Western Land Co. v. Truskolaski (SC of NV 1972):
o Facts:
 Restrictive covenant – single family dwelling restriction, created by
developer, but now same developer wants to not be limited by
covenant so he can build shopping center, bc of changed
circumstances
 Commercial development nearby, increased noise & traffic, etc.
 Not about “is it oppressive to the burdened party?” bc by definition,
these covenants are burdensome and restrict what someone can do
w/ their land.
 Instead, question/issue is “Does agreement now not provide
anyone any benefits, only burdens?” If no one benefits from
agreement anymore due to changed circumstances, that’s a
reason to not enforce it anymore. If circumstances have
changed so much that purpose of covenant has been thwarted,
where it may not even be possible to enforce it anymore, those
could be reasons why covenant might be unenforceable by
changed circumstance.
 Ppl might engage in more profitable use bc it would be loud
and noisy and harmful to neighbors; could be exactly what
covenant was useful for
 No one wants it to be limited to single family homes anymore, and in
this case, ppl could just release the covenant but why might someone
not want to do that? Bc if someone holds out to be the last benefiting
party of the parcel, they’ll basically hold everyone else hostage; this
doctrine prevents that from happening
o If there were a bunch of waivers or defections from the covenant that no one
bothered to enforce,
3/22 - 8. Private Restrictions and HOAs I: first, read “HOA supplemental materials”
packet p1-4 on canvas; then read Nahrstedt in book, p876-886 (and then read p1618 in HOA packet on canvas)
 Creating common interest community/HOA
 Nahrstedt v. Lakeside Village Condo Ass’n (SC of CA 1994):
o Facts:
 P (Nahrstedt, “crazy cat lady,” condo homeowner) purchased condo &
moved in w/ 3 cats. When HOA learned about cats, they demanded
their removal & assessed fines for each month that she remained in
violation of the pet restriction.
 P sued to prevent HOA for enforcing restriction against keeping
animals in condo development. P contended that their restriction was
unreasonable bc her 3 cats were quiet and she kept them indoors. P
alleged she didn’t know about restriction when she bought her condo.
 HOA demurred to the complain. Trial court sustained demurrer,
dismissed P’s complaint. P appealed.
 Court of Appeal reversed trial court, concluded that HOA could
enforce restriction only upon proof that P’s cats were likely to
interfere w/ the rights of other homeowners “to the peaceful and
quiet enjoyment of their property.”

CoA majority reasoned that determination of whether
restriction is “unreasonable” depends on facts of specific
homeowner’s case
o Issue: whether a pet restriction in the recorded declaration of a condo
complex is enforceable against challenge of a homeowner/when a condo
owner can prevent enforcement of a use restriction that the project’s
developer included in the recorded declaration of CC&R’s (covenants,
conditions and restrictions)
o Holding:
 “Restriction must be uniformly enforced in the development to which
it was intended to apply unless the P owner can show that the
burdens it imposes on affected properties so substantially outweigh
the benefits of the restriction that it should not be enforced against
any owner”
 CoA didn’t apply this standard in deciding that P had stated a claim for
declaratory relief. SC reverses CoA & remands case.
 letting one person escape obligations would be unfair to all other
homeowners who are under obligations, indicates that the obligations
are not universally enforced
o
9. Private Restrictions and HOAs II: Weldy, Woodside (on canvas: Packet p18-31)
