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Private Restrictions on Land

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NATURE OF PRIVATE RESTRICTION

Owners contract away rights affecting the potential use of their property.

These restrictions on use are either covenants or conditions, cumulatively known as restrictions.

Private limitations on land are called covenants, conditions, and restrictions.

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Limitations

Owners are generally free to limit their land in any manner not against the law.

Racial restrictions are in violation of the Constitution and invalid.

Restrictions that create a monopoly are unenforceable.

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Effect of Restrictions

When one parcel is burdened by a restriction, another parcel generally benefits from that limitation.

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Creation of Restrictions

General plan Contract Deed

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Creation of Restrictions

General plan

Contract Deed

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Creation of Restrictions

General plan Contract

Deed

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CONDITIONS & COVENANTS Conditions in Contracts Conditional Promises Conditions Precedent Conditions Subsequent

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Conditions in Real Property Law

A fact or event the occurrence or nonoccurrence of which creates an estate or interest (and is called a condition precedent) or extinguishes an obligation or estate of the promisor (and is called a condition subsequent).

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A covenant is a mere promise to do something, contractual in natureand not tied to the creation or defeating of an estate.

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CONDITIONS RUNNING WITH THE LAND The covenant binds successors in interest Conditions always run with the land because

they are part of the estate

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Requirements 1. The covenant must be in writing. 2. The property must be adequately

described. 3. The document must state that it shall run

with the land. 4. The document must be recorded. 5. The document must touch and concern the

land.

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Equitable Servitude

If the covenant cannot run because it does not meet the statutory requirements, it may still bind the successors under equitable circumstances.

a quasi-covenant is called an equitable servitude.

It is a burden on land binding successors through equitable principles.

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GENERAL PLAN RESTRICTIONS Developers may impose covenants,

conditions, and restrictions, known as general plan restrictions

Scope of Restrictions

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GENERAL PLAN RESTRICTIONS Equitable Servitude Notice and Intent Stated in Subdivider’s

Original Deed Description of Land Bound by General Plan

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Modification & Termination

General plan restrictions become unenforceable and terminate for the same reasons applicable to restrictions in general, including changed circumstances, public policy, waiver, expiration of term, and mutual agreement.

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TERMINATION & UNENFORCEABILITY Enforcement Defenses to Enforcement Changed Circumstances Public Policy Waiver

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Natural Termination

Certain restrictions terminate automatically without court action.

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Natural Termination

Some conditions state that they will expire after a set period of time in which case they automatically terminate at that expiration date.

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Natural Termination

Other conditions terminate by merger.

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