Also known as: equitable servitudes · equitable restriction
Written by attorneys — see sources below.
A restriction on the use of land enforceable in equity against a successor who takes with notice of the restriction. The restriction must appear in a writing that satisfies the statute of frauds and must reflect an intent to bind successors while touching and concerning the land.
Esme Ellington buys a lot in Sandy Acres Estates after the developer records a declaration requiring all owners to maintain yards according to approved landscape plans. When Esme plants an unapproved hedge, neighboring owners seek an injunction. The court enforces the restriction because the recorded declaration supplies the required writing and notice.
Edgar Evers purchases a condominium unit subject to recorded CC&Rs that prohibit pets. After moving in with three cats, the association sues for an injunction. The court upholds the restriction because the recorded document gave Evers constructive notice and the promise touches and concerns the land.
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 caseEmily Ellis acquires a lot in Alpine Meadows Estates. The deed to her contains no restrictions, yet the original subdivision map and later deeds impose height and use limits. When she begins construction that violates the limits, the planning committee sues. The court refuses to enforce the restrictions as an equitable servitude because the deed to Ellis supplied no notice.
In February 1964, Alpine Slopes Development Company conveyed Lot 101 of Alpine Meadows Estates Subdivision No. 3 in Placer County to Ernest H. and Jewel Riley by grant deed recorded on March 13, 1964. The deed contained no restrictions upon the use of the plaintiffs’ property nor any reference to any instrument purporting to impose restrictions upon Lot 101. At the time of the conveyance there was no document of record purporting to restrict the use of Lot 101. Nine months later, on November 25, 1964, the grantor recorded a declaration of covenants, conditions, restrictions and reservations on lots 72 through 116 of the subdivision. The declaration recited that the grantor had established a general plan for the improvement and development of the property and set forth 26 numbered paragraphs of restrictions, covenants and conditions, including paragraph 6, which required submission of plans and specifications to the Bear Creek Planning Committee and its approval before any dwelling, garage, building, fence, wall or other structure or excavation could be commenced or maintained. At a time not established by the record the Rileys constructed a snow tunnel on their lot. On January 12, 1972, the committee recorded a notice of violation of covenants, conditions and restrictions that referred specifically to Lot 101 and the declaration recorded November 25, 1964, and recited the probable violation of paragraph 6 in that a covered walkway had been constructed without prior compliance. The Rileys filed a complaint to quiet title and for damages for slander of title. The planning committee and some of its members cross-complained for declaratory relief. The trial court entered judgment quieting title in the Rileys against all claims of defendants and ruling for the Rileys on the cross-complaint. The Court of Appeal, Third Appellate District, affirmed the judgment. The California Supreme Court granted a hearing for the purpose of giving further consideration to the issues raised.
View caseElla Emerson owns a unit in La Jolla Shores Clubdominium. The homeowners association board adopts a maintenance rule for common areas that increases her assessments. She challenges the rule as unreasonable. The court defers to the board because the recorded CC&Rs create an equitable servitude that the association may enforce through reasonable rules.
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 caseAn equitable servitude is enforced by injunction when the successor takes with notice, while a real covenant traditionally requires privity and yields damages. Modern law treats both as covenants that run with the land under a unified analysis.
Supporting sources
The restriction must appear in a writing, reflect intent to bind successors, touch and concern the land, and the defendant must have actual or constructive notice.
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Yes. A court may refuse enforcement when neighborhood changes make the original purpose impossible to achieve, such as a shift from residential to commercial use.
No. The Restatement treats both as covenants that run with the land and uses the older labels only to describe historical development.
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…shall be kept in any unit." (Declaration, Art. VI, § 6.2.) The Declaration also states that its provisions are "enforceable equitable servitudes" that are "binding on all parties having any right, title or interest" in the project. (Declaration, Art. I, § 1.1.) In 1989, plaintiff brought three cats into her condominium unit. When…