Also known as: deed covenants · covenant in deed · covenants in deeds · restrictive covenant · covenant running with land
Written by attorneys — see sources below.
A promise contained in a deed that imposes affirmative or negative obligations regarding land use. The promise qualifies as a servitude when its benefit or burden is designed to run with the land to bind or benefit successors.
Elena subdivided wooded land and recorded deeds containing a declaration that no parcel could be cleared beyond thirty percent of its tree canopy or used for industrial structures. Malik later purchased a parcel and sought to build a sawmill. Rosa, owner of an adjoining parcel, sued to enforce the recorded declaration against Malik.
Able received payment from the owner of Whiteacre in exchange for a promise not to object to rezoning Whiteacre for industrial use for ten years. The agreement stated that the burden ran with Blackacre. A later owner of Blackacre sought to determine whether the promise qualified as a restrictive covenant.
Homeowners in a Los Angeles neighborhood signed a deed covenant barring occupancy by persons of the Negro or Mongolian race. One co-covenantor sold to a Black family in violation of the covenant. The remaining signers sued the seller at law for damages.
In Los Angeles, California, petitioners and respondent entered into a restrictive covenant as owners of residential real estate in the same neighborhood. The covenant stated that each signer promised that no part of the real property should ever be used or occupied by any person not wholly of the white or Caucasian race. Exceptions applied only for domestic servants actively employed on the premises. The restriction was to be incorporated in all transfers of the lots. Petitioners alleged that respondent breached the covenant by conveying her real estate without incorporating the restriction in the deed and by permitting non-Caucasians to move in and occupy the premises. Petitioners sued respondent at law for damages totaling $11,600 for the breach. Petitioner Pikaar was not a signer of the covenant but is successor in interest of a signer. The trial court sustained a demurrer to the complaint. The District Court of Appeal for the Second Appellate District affirmed the judgment, 112 Cal. App. 2d 534, 247 P. 2d 99. The Supreme Court of California denied hearing. The United States Supreme Court granted certiorari because of the importance of the constitutional question involved. The Court also sought to consider the conflict which has arisen in the decisions of the state courts since its prior ruling on related covenants.
View caseA homeowners association sought to enforce a recorded deed covenant governing maintenance and use restrictions against a unit owner who altered common areas without approval. The owner defended on grounds that the covenant imposed unreasonable burdens.
Gertrude M. Lamden owns a condominium unit in one of three buildings comprising the La Jolla Shores Clubdominium condominium development in La Jolla, California. The development was built in 1971. Lamden and her husband bought unit 375 in 1973. Until 1977 the Lamdens used their unit only as a rental. From 1977 until 1988 they lived in the unit. Since 1988 the unit has again been used only as a rental. The development is governed by defendant La Jolla Shores Clubdominium Homeowners Association, an unincorporated community association. In the late 1980's the Association hired a contractor to renovate exterior siding on all three buildings. The contractor replaced the siding on the southern exposure of Building Three and removed damaged drywall and framing. Where the contractor encountered termites a termite extermination company provided spot-treatment and replaced damaged material. Lamden remodeled the interior of her condominium in 1990. At that time the Association's manager arranged for a termite extermination company to spot-treat areas where Lamden had encountered termites. The following year both Lamden and the Association obtained termite inspection reports recommending fumigation but the Association's Board decided against that approach. The Board based its decision not to fumigate on concerns about the cost of fumigation, logistical problems with temporarily relocating residents, concern that fumigation residue could affect residents' health and safety, awareness that upcoming walkway renovations would include replacement of damaged areas, pet moving expenses, anticipated breakage by the termite company, lost rental income and the likelihood that termite infestation would recur even if primary treatment were utilized. In 1991 and 1992 the Association engaged a company to repair water intrusion damage to four units in Building Three. The company removed siding in the balcony area, repaired and waterproofed the decks, and repaired joints between the decks and the walls of the units. Where termite infestation or damage became apparent during this project spot-treatment was applied and damaged material removed. In 1993 and 1994 the Association commissioned major renovation of the Development's walkway system. The $1.6 million walkway project was monitored by a structural engineer and an on-site architect. In 1994 Lamden brought this action for damages, an injunction and declaratory relief. She purported to state numerous causes of action based on the Association's refusal to fumigate for termites naming as defendants individual members of the Board as well as the Association. Her amended complaint included claims sounding in breach of contract, breach of fiduciary duty, and negligence. At trial Lamden waived any damages claims and dismissed with prejudice the individual defendants. Presently she seeks only an injunction and declaratory relief. After both sides had presented evidence and argument the trial court found there was no question from all the evidence that Mrs. Lamden's unit has had a serious problem with termites. The evidence was overwhelming that termites had been a problem over the past several years. The trial court found that the Board did have a rational basis for their decision to reject fumigation and do what they did. Ultimately the court gave judgment for the Association applying what it called a business judgment test. Lamden appealed. Citing Frances T. v. Village Green Owners Assn. the Court of Appeal agreed with Lamden that the trial court had applied the wrong standard of care in assessing the Association's actions. Accordingly the Court of Appeal reversed the judgment of the trial court. We granted the Association's petition for review.
View caseA condominium declaration recorded in the deeds prohibited pets in units. A new owner acquired a unit and kept a cat, prompting the association to demand removal under the recorded covenant. The owner challenged enforcement as unreasonable.
Lakeside Village is a 530-unit condominium development in Culver City consisting of 12 separate three-story buildings whose residents share common lobbies, hallways, laundry, and trash facilities. In April 1978 the developer recorded a declaration of covenants, conditions, and restrictions that included the provision that no animals, defined to mean dogs and cats, livestock, reptiles, or poultry, shall be kept in any unit. Plaintiff Natore Nahrstedt purchased a unit in January 1988 and moved in with her three cats, which she kept entirely inside the unit. When the Lakeside Village Condominium Association learned of the cats it demanded their removal and levied successive monthly fines against Nahrstedt. Nahrstedt then filed suit against the Association, its officers, and two employees seeking declaratory relief that the pet restriction was unreasonable as applied to her indoor cats, invalidation of the assessments, damages for invasion of privacy and emotional distress, and injunctive relief. The complaint alleged that the cats were noiseless, created no nuisance, and had not damaged any portion of her unit or the common areas, and it incorporated by reference the grant deed, the declaration, and the condominium plan. The Association demurred to the complaint on the ground that the restriction was reasonable as a matter of law. The trial court sustained the demurrer as to every cause of action and dismissed the complaint. A divided Court of Appeal reversed the judgment of dismissal, concluding that Nahrstedt had stated a claim for declaratory relief because the reasonableness of enforcing the restriction against her particular cats presented a factual question. The dissenting justice in the Court of Appeal maintained that the recorded restriction should be treated as presumptively valid under the law of equitable servitudes. On the Association's petition the Supreme Court granted review.
View caseProperty owners executed a deed covenant prohibiting sale or occupancy by Black families. A seller conveyed to a Black purchaser. Neighboring owners sued to enjoin the sale and occupancy under the recorded covenant.
In February 1911, thirty out of thirty-nine owners of property fronting both sides of Labadie Avenue between Taylor Avenue and Cora Avenue in St. Louis signed a recorded agreement. The agreement restricted the use and occupancy of the properties for fifty years to persons of the Caucasian race. It excluded occupancy by people of the Negro or Mongolian race. The district included fifty-seven parcels of land. The signers held title to forty-seven parcels. At the time, five parcels were owned by Negroes, with one occupied by Negro families since 1882. On August 11, 1945, the Shelley petitioners, who are Negroes, purchased one parcel from Fitzgerald by warranty deed for valuable consideration without knowledge of the restriction. On October 9, 1945, respondents sued in the Circuit Court of St. Louis to restrain the Shelleys and divest title. The trial court denied relief, but the Supreme Court of Missouri reversed and directed enforcement. In June 1934, Ferguson and his wife executed a contract restricting their Detroit property to Caucasian occupancy. The restriction was effective only if at least eighty percent of the lots in the block were subjected to similar restrictions. The restrictions were to remain in effect until January 1, 1960. Similar agreements covered eighty percent of the lots. By deed dated November 30, 1944, the McGhee petitioners, who were Negroes, acquired and occupied the Detroit property. On January 30, 1945, respondents sued in Wayne County Circuit Court. The court ordered them to move within ninety days and enjoined future occupancy. The Supreme Court of Michigan affirmed. Petitioners claimed that judicial enforcement violated the Fourteenth Amendment.
View caseA covenant qualifies as restrictive when it is negative in character and limits permissible uses of land. The Restatement treats such negative covenants as servitudes when the benefit or burden is intended to run with the land.
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The Restatement classifies negative easements as restrictive covenants. An easement under the Restatement covers only affirmative rights to enter and use land and excludes negative obligations, which are instead governed by the rules for restrictive covenants.
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The covenant must be intended to run with the land, touch and concern the land, and appear in the chain of title so that purchasers receive notice. Recording supplies constructive notice and supports enforcement against successors.
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A deed covenant that directly restrains alienation is invalid if the restraint is unreasonable. Courts weigh the utility of preserving a particular use against the injurious effect on marketability and transferability.
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…of potential pupils and their parents; and to Barrows v. Jackson , 346 U. S. 249, where a white defendant, party to a racially restrictive covenant, who was being sued for damages by the covenantors because she had conveyed her property to Negroes, was allowed to raise the issue that enforcement of the covenant violated the rights of…