A man and his neighbor owned homes on adjacent lots in a subdivision. They both agreed in writing not to place a storage unit in their yards. Their agreement was drafted in recordable form and stated that it was enforceable by and against all assignees, heirs, and successors. The agreement was promptly recorded. 3 years later, the neighbor conveyed his home to his daughter. The daughter informed the man she wanted to build a storage unit in her yard, claiming that the restriction wasn't enforceable against her. Can the man enjoin the daughter from building the storage unit?
The answer is that the man can enjoin the daughter from building the storage because the restriction is binding on the daughter as a successor.
I thought the answer was that because there's no horizontal privity between the man and the neighbor, that's why the man cannot enjoin the daughter from building the storage. Can someone please confirm whether or not there is horizontal privity here? I'm so confused! I thought horizontal privity is like grantor/grantee, landlord/tenant, mortgagor/mortgagee. Here, it's just a man and a neighbor...
MBE Property Question!!! Forum
Forum rules
Anonymous Posting
Anonymous posting is only appropriate when you are sharing sensitive information about bar exam prep. You may anonymously respond on topic to these threads. Unacceptable uses include: harassing another user, joking around, testing the feature, or other things that are more appropriate in the lounge.
Failure to follow these rules will get you outed, warned, or banned."
Anonymous Posting
Anonymous posting is only appropriate when you are sharing sensitive information about bar exam prep. You may anonymously respond on topic to these threads. Unacceptable uses include: harassing another user, joking around, testing the feature, or other things that are more appropriate in the lounge.
Failure to follow these rules will get you outed, warned, or banned."
-
Summerheightshigh
- Posts: 6
- Joined: Tue Aug 01, 2017 12:13 pm
Re: MBE Property Question!!!
Fairly certain the difference lies in the remedy being sought. If this was a legal remedy, then yes you would be correct, there would need to be horizontal privity. However, when seeking an equitable remedy there needs to be three requirements. 1) The restricition needs to touch and concern the land; 2) There must be notice; and 3) the original parties intended for the burden to run with the land. Here, the restiriction touches and concerns the land. The restriction was recorded and there appears to be actual knowledge by the daughter. Finally, the language indicates that there was intent for it to run. Fairly certain this is the correct reasoning. Just did a question with a very similar question to this.
-
Anonymous User
- Posts: 428520
- Joined: Tue Aug 11, 2009 9:32 am
Re: MBE Property Question!!!
Thank you!!Summerheightshigh wrote:Fairly certain the difference lies in the remedy being sought. If this was a legal remedy, then yes you would be correct, there would need to be horizontal privity. However, when seeking an equitable remedy there needs to be three requirements. 1) The restricition needs to touch and concern the land; 2) There must be notice; and 3) the original parties intended for the burden to run with the land. Here, the restiriction touches and concerns the land. The restriction was recorded and there appears to be actual knowledge by the daughter. Finally, the language indicates that there was intent for it to run. Fairly certain this is the correct reasoning. Just did a question with a very similar question to this.
