Property
Class Notes
Blevins v.
Barry-Lawrence County Association for Retarded Citizens
“NIMBY”
– Not In My Backyard!!! I need it, the
community needs it, I think we ought to have it, just don’t locate it near
me. That’s what’s going on in Blevins.
These types of facilities are needed, yet your own selfish interests
could make you try to keep the place from being built near you.
What
was the covenant here? It’s a
restrictive covenant that says the land must be used for residential purposes
only, and no buildings may be erected other than single or double family
dwellings. What do we mean by
residential purposes? The court favors a
definition of a place where “people reside or dwell”. It’s also not used for commercial or business
purposes. It does include apartment
buildings, and we think that it includes use as a home for mentally retarded
persons. It’s also a non-profit
purpose. In a way, it’s close to a business. It’s sort of almost like an educational
institution. But the court doesn’t
really discuss that.
The
court says that this is a residential purpose.
But is it a single family dwelling?
It’s doesn’t have to be used for a single family residence. The property must be used for residential
purposes, and nothing is to be constructed
on the property other than a single or double family dwelling. All this covenant is doing is regulating what
can be built, not what it can be used
for.
So
if you live in a subdivision with a covenant that says that you can only build
a single family residence on it, and then a funeral home moves in and builds a
funeral home that is designed like a single-family house. Does that mean you can build a funeral home
in a subdivision where it says that you can only build “single-family dwellings”? Maybe you can build something that looks like
a house and then use it for anything you want.
Braunstein thinks it’s unlikely they would not allow this. The court would probably say that no matter
how much they try to make it look like a house, it doesn’t look like a
house. The court would figure out some
way not to let funeral homes in. But
there’s a difference between use
requirements and construction
requirements. The court reads the
covenant fairly narrowly so it doesn’t have to determine whether the people living
in the house are a family.
What
if someone works out of their home? It
depends on how specific the restrictive covenant is.
Equitable servitudes versus
real covenants
The
only difference between the two is that the horizontal privity of estate requirement
is replaced with notice when it comes to equitable servitudes. Otherwise, both kinds of servitudes require:
(1) intent to be bound, (2) touch and concern, (3) vertical privity of estate,
and (4) formalities. Except for damages
as opposed to injunction, there is no difference anymore between an equitable
servitude and a real covenant because notice is a requirement for real
covenants as well due to the Recording Acts.
Under
the Recording Acts, if someone purchases property without notice of some
restriction on the property, the third party purchaser without notice “takes”
free of the restriction and is not bound by it.
For example, A and B enter into a restrictive covenant that restricts B’s
lot. If B sells to C, then the burden is
binding on C unless C doesn’t have
notice of the restriction. What this
means in practice is that subsequent takers must have notice or they won’t be
bound. The real covenant runs without
notice, but, because of the Recording
Acts the good faith purchaser is protected from them. So real covenants require horizontal privity and notice; equitable servitudes require
just notice.
There
are three kinds of notice: (1) actual notice, (2) constructive notice, or (3)
inquiry notice. Actual notice is when
someone actually tells you that the land is restricted by some covenant. Constructive notice is fictional, and what we
mean by that is that the information is contained in the public records. Whether you look at the records or not, you’re
deemed to have notice of what’s in there.
The third kind of notice is especially relevant in these kinds of cases:
inquiry notice. If you have notice of
certain facts that would make a reasonable person curious, then you’re deemed to know what a reasonable inquiry would
reveal. You have a duty to ask.
When we’re talking about residential subdivisions or office parks where
there is an obvious plan of construction, you have a duty to ask whether there
are restrictions on building there.
Bishop v.
Rueff
What’s
the deal here? There were two neighbors,
and one put up a wooden fence (a “spite fence”, Braunstein speculates). The fence affected the water flow across the property. Damages are awarded because it is found that
the fence was built in such a way as to interfere with the free flow of water.
There
was a guy named Imorde who sells one lot to Bishop, and then Imorde sells other
lots to someone else. That person
divides up the land into lots of little lots, including one to Rueff. Does the restriction between Imorde and
Bishop apply to Rueff? The issue becomes
whether Rueff had notice of the restrictions. Note that implied reciprocal servitudes seem
to arise “at the drop of a hat” in
What’s
wrong with saying that Rueff had notice?
This case is later overruled. If
you want to impose servitudes on lots, you ought to file a plat of subdivision
so that the restrictions are in the grantor’s chain of title. That way, all of the successors will have
notice. In a regular title search, Rueff
wouldn’t come across this particular covenant.
Termination of servitudes
There
are lots of ways to end servitudes: (1) release, (2) merger, (3) abandonment,
(4) estoppel, (5) waiver, (6) unclean hands, and (7) changed conditions. Estoppel is an equitable doctrine that
applies only when you’re seeking an equitable remedy. It might end equitable servitudes but not
real covenants. Unclean hands is the
same: it won’t terminate real covenants.
Unclean hands means that one who is seeking equity must do equity. If you violate a restrictive covenant, you
can’t fairly sue someone else for doing the same thing. That doesn’t really terminate the servitude,
but it means that the particular person suing to enforce the servitude will not
be allowed to do it. The most important
is changed conditions. Changed
conditions is important because servitudes can last a very, very long time and
it’s quite possible that they will become obsolete and incapable of
accomplishing the purpose for which they were intended or that they become
impractically expensive.
Some
states terminate servitudes by statute. Others
use the doctrine of changed conditions.