property question

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klussy
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Joined: Mon Apr 27, 2009 5:19 pm

property question

Postby klussy » Sun May 08, 2011 7:33 pm

So if some people enter into a covenant, and one does not consent (ie isnt a part of the group), then the others cant enforce against him because he's not a party. But if the non-consenter passes his land to someone else, and that person supports the covenant, can that new person enforce the covenant against the other members of the covenant? or would the analysis fail before you even get to the "does it run" part because his predecessor wasn't a party to the covenant?

random5483
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Joined: Sat Mar 20, 2010 8:17 pm

Re: property question

Postby random5483 » Sun May 08, 2011 10:47 pm

klussy wrote:So if some people enter into a covenant, and one does not consent (ie isnt a part of the group), then the others cant enforce against him because he's not a party. But if the non-consenter passes his land to someone else, and that person supports the covenant, can that new person enforce the covenant against the other members of the covenant? or would the analysis fail before you even get to the "does it run" part because his predecessor wasn't a party to the covenant?



Not quite sure what you are asking, but I will give it a shot.

If someone does not consent to the covenant and are not part of the covenant, when they convey their land to another, the new owner is not a part of the covenant. The new owner cannot bring himself into the covenant without some sort of formal agreement. If the other covenators bring the new owner into the covenant, the new owner can enforce the covenant against them. Otherwise, he cannot since he is not part of the covenant.

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starchinkilt
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Re: property question

Postby starchinkilt » Sun May 08, 2011 11:07 pm

random5483 wrote:
Not quite sure what you are asking, but I will give it a shot.

If someone does not consent to the covenant and are not part of the covenant, when they convey their land to another, the new owner is not a part of the covenant. The new owner cannot bring himself into the covenant without some sort of formal agreement. If the other covenators bring the new owner into the covenant, the new owner can enforce the covenant against them. Otherwise, he cannot since he is not part of the covenant.


+1. One minor exception our book (and Professor) mentioned is that an outsider with no privity or covenant may be able to enforce a covenant against others if the jurisdiction is one of those ones who has pretty much gotten rid of traditional real covenant law and uses the restatement approach. As long as the original grantor of the covenant intended it to benefit the surrounding neighborhood, the outsider can obtain an injunction. This is a very small number of jurisdictions though.




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