Property Question (covenants)

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mrjohnsterman
Posts: 171
Joined: Tue Oct 25, 2011 12:07 am

Property Question (covenants)

Postby mrjohnsterman » Sun Apr 28, 2013 8:50 pm

If there was a land developed who had 30 lots. He sold the first lot with no covenant. And then lots 2-30 with a covenant. Then Lot #1 gets sold to a third party. A. can the new owner of lot #1 enforce the burdens on lots 2-30. B. Is the new owner of lot #1 subject to the burdens?

I believe the answers to be:
A. Would be yes, because vertical privity is not needed for the benefit to run
B. No (even if at a date after #1 was sold there was a neighborhood map saying that all the properties had the burden)

Thanks for your help.

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Jsa725
Posts: 2003
Joined: Wed Feb 15, 2012 9:20 pm

Re: Property Question (covenants)

Postby Jsa725 » Sun Apr 28, 2013 9:09 pm

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Last edited by Jsa725 on Fri Oct 24, 2014 10:20 pm, edited 1 time in total.

bt53
Posts: 19
Joined: Sat Oct 01, 2011 6:21 pm

Re: Property Question (covenants)

Postby bt53 » Wed May 01, 2013 3:00 pm

Jsa725 wrote:
mrjohnsterman wrote:If there was a land developed who had 30 lots. He sold the first lot with no covenant. And then lots 2-30 with a covenant. Then Lot #1 gets sold to a third party. A. can the new owner of lot #1 enforce the burdens on lots 2-30. B. Is the new owner of lot #1 subject to the burdens?

I believe the answers to be:
A. Would be yes, because vertical privity is not needed for the benefit to run
B. No (even if at a date after #1 was sold there was a neighborhood map saying that all the properties had the burden)

Thanks for your help.


A) ordinarily,the new owner cannot enforce the other covenants b/c he is not a direct beneficiary of the covenants on lots 2-30 (his lot was converted prior). if implied reciprocal jurisdiction, he has no implied reciprocal and can also not enforce the covenant b/c there is no covenant on his land. if 3d party beneficiary jurisdiction, the new owner may be a 3d party beneficiary of the 2-30 covenants if the elements of 3d party beneficiary are met.

B) i believe the only way he could be sued (only on an implied covenant) is if there is an 3d party beneficiary jurisdiction

can anyone confirm?

eta: for B)
first, you have to run through the equitable servitude analysis: 1) intent run w/ land 2) touch and concern 3) notice [the new owner has notice of the implied servitude that he may be burdened with] ... second, run through the 3d party beneficiary analysis to confirm that lots 2-30 could sue lot 1.



Edit: you're right the negative reciprocal easement has to have existed at the time the lot was originally sold by the owner who conceived the common plan. I think the third party beneficiary element would require that the party be in some sort of contractual or substantive privity with someone who could enforce the equitable servitude on their own if they so chose.

Younger Abstention
Posts: 335
Joined: Sun Dec 19, 2010 2:36 pm

Re: Property Question (covenants)

Postby Younger Abstention » Sun May 05, 2013 4:59 pm

Neighborhood map wouldn't matter, you'd need actual, not constructive notice here (constructive notice ok only with privity).




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