Covenants

Touch and Concern

Touch & Concern relates to how the land is affected by the covenant and what the impact is to the owners of the dominant and servient estates, as owners of this specific property. The Traditional Test evaluates whether or not the covenant affects the use and enjoyment of the land itself, rather than the individual, in both its burden and benefit. · Benefit affects use and enjoyment of the land for the dominant estate. · Burden affects use and enjoyment of the land for the servient estate. · The problem is that touch and concern is completely indeterminant and courts can always find it if they want. One can always argue that restrictive covenants limit land and affect value of land. · In these cases, always make both arguments.

Types of Planned Communities

Types of Planned Communities include Homeowner's Associations, Condominiums, and Co-Operatives. Homeowner's Associations (HOA) Individuals own their units. Common areas are owned completely by the HOA, but all homeowners are members and collective owners of the HOA, and the HOA acts as their agent. Condominiums (Condos) Individuals own their units. Common areas are owned by individual owners as tenants in common. The common areas are managed by the condominium board, which the individuals belong to as members. The board only acts as an agent in managing the use. Co-Operatives (Co-Ops) Co-Ops are created out of corporate law, rather than property law. Individuals buy a share in the corporation, which owns the entire property. There is no ownership of individual units, but instead shares of the corporation that then leases (licenses) out the individual units. Because there is a mortgage on the entire property, taxes are included in dues, which limits this Co-Ops to more affluent people due to the high level of financial co-dependency. Courts will more easily enforce restraints on alienability in Co-Ops by allowing more latitude on selecting who can and can't move in.

Riley v. Bear Creek Planning Committee

A restriction that is not recorded at the time of the purchase will not be enforceable against the purchaser, even if the purchaser orally promised to be bound by the restrictions. The intent of both the grantor and grantee in the deed will govern. A deed is construed at the time that it is given. If, after the deed is created, the grantor attempts to create a common scheme, the rights in the deed will not be varied. It does not matter that the grantee may have understood the restrictions because they were not incorporated into the deed, which evidences the final understanding of the parties.Extrinsic evidence will not be allowed to show the intent of either party.

Appel v. Presley Cos.

Appel v. Presley Cos. Wolfe planned to build townhouses on his lot, which was previously barred by the covenants. The Appels brought this suit requesting a permanent injunction, stopping Wolfe from building anything that violated the restrictive covenants. Provisions allowing the amendment of restrictive covenants in a subdivision are subject to a reasonableness standard and may be disallowed by a court if they essentially destroy the covenants. Provisions in restrictive covenants allowing their modification or cancellation must not be unreasonably exercised. There is an inconsistency in a restrictive covenant that sets out a common development plan, but also contains a clause allowing the subdivision grantor to modify or get rid of any part of the plan at any time. Courts must resolve this inconsistency with a factual determination on the reasonableness of the employment of the exception. In this case, the restrictive covenants contain an exception allowing amendment of the covenant requirements. The determination of whether that amendment provision was reasonably employed is a question of fact. As a result, summary judgment is not warranted and the trial court is reversed.

Blakeley v. Gorin

Blakeley v. Gorin A court may not enforce a restrictive covenant if the harm done by enforcing the covenant is greater than the benefit received. In Massachusetts if the purpose or benefit of a restrictive covenant is obsolete, the covenant will not be enforced. In addition, even if the benefit still exists, the court may deny enforcement, and instead award monetary damages to the aggrieved party, if such denial is in accord with the changed nature of the neighborhood, would remove an impediment to a reasonable use of the land for purposes for which it is best suited, or is in the public interest. In this case, it cannot be said that the benefit of the restriction is obsolete. The defendants' apartment building still benefits from the light and air coming through the alley in its open state. However, in light of the changed conditions of the neighborhood and the use and public benefits of the plaintiffs' proposed building, injunctive relief is denied in favor of monetary damages awarded to the defendants. Since the restriction on use of the alley was enacted, Boston has grown significantly and it is no longer as feasible as it once was to protect restrictions on light and air due to the increased presence and utility of high-rise buildings. The plaintiffs' proposed high-rise will gain the most utility out of being connected to the Ritz-Carlton next door. The 12-story hotel portion of the proposed building is only feasible if it is connected to the hotel services available in the Ritz-Carlton. Connecting these floors by the bridge is reasonable in size as well as purpose. Finally, in terms of the public interest, denial of the injunction would allow for a beneficial use of a previously vacant lot, not to mention an increase in tax revenue for Boston residents.

Common Plans

Common Plans can be shown by: Presence of restrictions in all or most of the deeds to property in the area. Courts will use the characteristics surrounding developed area to discern intent. Observance by owners of similar development of their land and conformity with written restrictions Recorded plat (map) showing the restrictions Presence of restrictions in the last deed If there is no privity, plaintiffs will move to estop based on reliance (estoppel). Language stating the covenants are intended to run with the land If there is no writing, plaintiffs will move to estop based on reliance (estoppel) of the expectation that there would be uniform development (ex: only residential). Recording of a declaration stating the covenants are intended to be mutually enforceable Either inquiry notice or constructive notice is required to be enforceable.

Davidson Bros. v. D. Katz

Davidson Bros. v. D. Katz The closing of George Street as a grocery store created significant hardships for downtown residents who did not have access to cars and could not get to the other Davidson grocery store. George Street was the only area downtown suitable for a grocery store. As a result, the New Brunswick Housing Authority (NBHA) acquired the George Street property and leased it to C-Town for one dollar a year, provided that C-Town used it as a grocery store. Davidson then brought suit against Katz, NBHA, and C-Town (defendants) to specifically enforce the covenant in the deed to Katz. Under New Jersey law, a real covenant will not be enforceable unless it can satisfy a reasonableness test. Under the reasonableness test articulated by the New Jersey Supreme Court, a covenant is not enforceable if it is determined to be unreasonable in light of the public's interests. New Jersey has abandoned the rigid "touch and concern" doctrine governing real property covenants. Instead, there are eight factors that must be considered. Specifically, courts must determine whether (1) the parties had a legitimate intent when they entered the covenant, (2) the covenant was part of the consideration in the agreement, (3) the restrictions are clear and express, (4) the covenant was contained in a recorded writing and the subsequent taker had notice, (5) the covenant is for a reasonable duration and area, (6) the covenant restrains trade, (7) the restriction "interferes with the public interest," and (8) the covenant is no longer reasonable in light of changed circumstances.

Development Timelines

Development Timelines often create issues of enforcing implied reciprocal negative servitudes, or planned community covenants. o First Lots Sold · Lots sold before the declaration is recorded or before other lots are sold with deeds containing covenants present issues because the covenants are not in their deed. · There cannot be inquiry notice because this is the first piece of land to be sold, so there is no other property to help decipher what the character of the community will be. · For the covenant to be enforceable there must be implied reciprocal negative easements (of a planned community) & actual notice that the developer was building a planned community. · The covenant can only be enforced if the first buyers knew about the intention to have covenants in all of the units, including their own. o Middle Lots Sold · Lots sold after the declaration is in place, but before covenants are put in place also present issues since they are not restricted in the way that the rest of the community is. · Estoppel does not help enforce the covenant because no one made a representation that all lots would be subject to the covenant. · The covenant can only be enforced showing constructive and inquiry notice. · Constructive notice is required because you should have checked registry & looked at deeds for land surrounding you. · Inquiry notice is required because you should assume there's a covenant when all the lots look the same, and ask about it · Implied covenant doctrine replaces writing with an implication of notice. · The debate is always over what is enough notice? How many units need to be subjected to the covenant to have constructive or inquiry notice? o Last Lots Sold · Lots sold towards the end of development present issues when owners buy the land expecting the benefits of a covenant, but don't receive them (estoppel). · Through estoppel, earlier lots subject to the covenants can block development that is contrary to the covenants for the rest of the community's interest. · Developers are blocked from breaching covenants because it is unfair for him to ignore his own promise (ex: to build commercially) if buyers had investment backed expectations against the covenants being breached. · The developer created an impression that the covenant would apply to the entire development, so courts will apply the covenant to the last lots based on that impression and reliance (estoppel). · The moment the court replaces writing with something that doesn't exist, it has to fill the contents of the writing, including: · What are the burdened lots? What are the burdens on them? · Some courts require intent to deceive to find estoppel. · If the developer retains certain lots and the lots are not restricted by covenants different issues arise. · If they are noted in the original plan, they will likely be held as part of the common plan and subject to the covenants. · If never described on the plat or declaration, then they probably won't be held as part of the common plan and thus not subject to covenants. · Most courts rule that only parcels within the common scheme are restricted because the grantor's intent to leave a tract or parcel out of the common scheme is determinative.

El Di, Inc. v. Town of Bethany Beach

El Di, Inc. v. Town of Bethany Beach El Di purchased its restaurant in 1969 and allowed its customers to engage in the practice of brown-bagging—bringing in their own alcohol to drink during their meal. This practice was possible because there were multiple places around El Di's restaurant where people could buy alcohol. El Di then applied for and received a permit to sell alcohol on its premises in order to control the excessive consumption of alcohol due to the practice of brown-bagging. The Town of Bethany Beach (plaintiff) brought suit to enjoin El Di's sale of alcohol under the restrictive covenant. A court will not enforce a restrictive covenant where a fundamental change has occurred in the neighborhood such that the benefits of the restriction are rendered futile. Where a fundamental change has occurred in a restricted neighborhood that makes the enforcement of a restrictive covenant futile, a court is not required to uphold the restriction. This is because if the changed conditions in the neighborhood make it so that the restriction no longer provides a benefit to the dominant estate, there is no use in restricting the free use of the servient estate. One of the purposes of the prohibition on alcohol sales in Bethany Beach was to maintain a quiet, family atmosphere in the town. However, over time, the community has transformed from a quiet, residential town into a beach resort, frequented during the summer by thousands of tourists. This transformation has been accompanied, if not spurred by a significant increase in the number of commercial businesses in town. These businesses are not only at odds with a quiet family atmosphere, but also have gone unchallenged for years despite a clear violation of the same restrictive covenant being defended in this case. In addition, even with the restriction in place on El Di's restaurant, due to the practice of brown-bagging, its customers still consume as much and perhaps more alcohol on its premises than they would if El Di was permitted to sell the alcohol itself. Thus, because the conditions of Bethany Beach have changed such that the enforcement of the restriction no longer serves its intended purpose, the court finds it unreasonable and inequitable to enforce the restrictive covenant.

Equitable Defenses are also used to terminate covenants.

Equitable Defenses are also used to terminate covenants. The Unclean Hands Doctrine is used when the covenant is violated by the dominant estate owner. Acquiescence is applied when the dominant estate owner can be shown to have tolerated previous violations of the covenant by owners of the servient estate (defendant). Abandonment can be applied when the covenant has been violated by owners of other restricted parcels in the neighborhood that are also covered by the covenant (owners like the defendant). This requires a demonstration of subjective desire to not have the covenant anymore.

Evans v. Pollock

Evans v. Pollock The hilltop remained un-deeded until after the Hornsbys died when their devisees contracted to sell the hilltop to Pollack (defendant) for the purposes of building a marina and private club. Charles Evans along with other owners in the subdivision whose properties were subject to the restrictions (Evans) (plaintiffs) brought suit for equitable relief under the implied reciprocal negative easement doctrine. The trial court held that the restrictions applied to the lakefront lots, but not the hilltop. Restrictive covenants implied in subdivisions do not necessarily apply to the whole subdivision. The general development plan in an implied restrictive negative easement in a subdivision can apply to the entire subdivision, but it does not necessarily have to. Different lots within a subdivision are not always situated the same way so the restrictions on some lots in a subdivision are not always intended to and do not always have to apply to all lots. In the Hornsby/McCormick subdivision, the voting rights defined in the lakefront deeds apply only to those lakefront lots and not to the hilltop. Along those lines, while most of the lots in the subdivision are on the lake, the hilltop is situated differently as it is set back from the lake and on a hill. Thus, because implied restrictive negative easements do not necessarily apply to an entire subdivision, the deeds and layout of the Hornsby/McCormick subdivision creating such a distinction between the lakefront properties and the hilltop constitutes strong evidence that the restrictions in the deeds are meant to apply only to the lakefront lots and not to the hilltop.

Covenants vs. Easements

Generally, property owners prefer to have easements over covenants. It is much easier to create an easement because you can engineer the elements. With covenants, there are elements you can't create. The requirements for covenants are stricter than for easements. Covenants can be more easily removed than easements can be through the doctrines of undue hardship and changed conditions. Covenants also allow creation of affirmative obligations of owners to have to do something for the benefit of another, as opposed to just refraining from doing something to harm another. Affirmative easements allow an owner to do something on someone else's land while affirmative covenants force someone else to do something on their own land. Negative covenants are like negative easements, but weaker since they don't run with the land and harder to prove due to the privity requirement. Property owners also prefer to have covenants over contracts because they run with the land and can be enforced by future owners, while contracts are tied to individuals.

Implied Reciprocal Negative Servitudes

Implied Reciprocal Negative Servitudes are planned community covenants that exist when a developer sells a number of parcels with evidence to create a common plan or scheme of development, then: Even if not a written in a uniform declaration, most courts allow covenants to be enforced by and against all owners of the properties if they were intended to be part of a common scheme or general plan. This creates implied reciprocal negative servitudes. Covenants made to the seller benefit all parcels within the plan. All parcels within the plan are bound by the covenants. Most courts accept this doctrine, but some reject the doctrine of implied reciprocal negative servitudes and hold that they will be enforced only if expressly defined in the common plan or there is a declaration. To be enforceable, the rules and bylaws creating the covenants have to be reasonable as well as within the scope of authority reasonably created by the declaration. · Some states use business judgment instead of reasonableness rule, which immunizes associations as long as they act in good faith while maintaining the value of the property.

Sanborn v. McLean

In 1910 or 1911, the McLeans (defendants) purchased some of the land through a series of conveyances tracing directly to the McLaughlins, whose title did not include the same restriction. The McLeans started to build a gas station on their lot. Sanborn and other neighbors (plaintiffs) sued the McLeans to enjoin the construction of the gas station. Where the owner of two or more related lots conveys one with restrictions for the benefit of the retained lot(s), the restrictions are deemed to apply also to the retained lot(s). When the owner of related lands conveys part of the land to another with restrictions intended to benefit the retained land, the same restrictions apply to the retained land by operation of law. Such restrictions are enforceable against each subsequent purchaser with knowledge of the restriction until the easement expires or other events render the restrictions outdated. In this case, the McLeans' title traced back to 1892, when the McLaughlins first conveyed restricted land to others. In doing so, the McLaughlins created the restrictions on their own land as well. When the McLeans purchased their plot in 1910, they should have noticed that their plot of land traced back to the McLaughlins, who owned 97 related surrounding parcels. The McLeans should also have noticed that those related parcels conveyed with strict limitations on use. Moreover, the McLeans should have been able to observe that the lots surrounding his contained houses which conformed to a general consistent plan, which at a minimum puts them on inquiry notice that the land was uniformly burdened with similar covenants.

Formal Defenses used to terminate covenants include

Language in Instrument Some HOA covenants will contain language stating that they will terminate if the association doesn't renew them. These clauses will limit a covenants lifespan in writing. Merger of Ownership Covenants will terminate if the benefitted and burdened estate come under the ownership of one party. Release Parties will agree in writing to discharge a covenant. Prescription Parties will terminate a covenant by violating it in an open and notorious manner without permissions for the statutory period. This creates a huge incentive for HOAs to enforce covenants strictly since allowing it to be violated may make it unenforceable. Estoppel Parties who have relied upon the non-enforcement of a covenant may be able to have it terminated or estopped. If the plaintiff represents to defendant that she will not seek enforcement of the covenant and then the defendant changes his position in reliance of that representation, then the plaintiff may be estopped from enforcement of the covenant. Laches If the covenant is ignored or breached for a substantial period of time but less than the time needed to establish prescriptive rights, courts may rule that enforcement is unconscionable, terminating the covenant. The difference between prescription and laches is that prescription requires a statutory period of time to possess land, whereas laches is common law principle without specific time period assigned to it. Marketable Title Acts Many states automatically invalidate covenants if they are not re-recorded after a certain period of time. Remedies for contested covenants include damages and injunctive relief. If a party is seeking damages, they need to prove privity. If a party is seeking an injunction, they do not need to prove privity.

Neponsit v. Emigrant

Neponsit v. Emigrant Privity of estate will exist in substance if not in form between property owners and an owners' association when the association is acting as a medium through which enjoyment of a common right is preserved. Generally, there must be privity of estate for a claimant to enforce a real covenant. There is technically no privity of estate between a property owner and an owners' association. However, based on equitable principles, restrictive covenants have been enforced without privity of estate if the covenant was entered into to benefit the claimant. This case does not involve a restrictive covenant, but the court may look behind the corporate form of the POA. The covenant provided that the POA would be the assignee of the benefit of the covenant. The POA is merely acting as a "medium through which enjoyment of [the owners'] common right may be preserved." There is privity of estate between the property owners and the POA "in substance, if not in form." The judgment of the court below is affirmed.

Neuman v. Grandview at Emerald Hills, Inc.

Neuman v. Grandview at Emerald Hills, Inc. Upon hearing about the service, other Grandview residents complained to management about the holding of a religious service in a common area. After a heated, argumentative resident meeting, Grandview held a vote and 70 percent of residents voted in favor of prohibiting religious services, so Grandview enacted a rule that prohibited the use of the auditorium for religious services. Neuman filed suit for injunctive relief alleging violation of a Florida statute that prohibited condominiums from unreasonably restricting condo owners' right to peaceably assemble. Rules in a declaration of condominium are valid if they are reasonable and do not violate public policy or the condo owners' constitutional rights. A condominium rule is enforceable if it is reasonable in light of the rule's objective and the interests of the affected residents. Due to the unique nature of condominium layouts, they have broad discretion in enacting rules that may restrict residents' activities. In this case, the statute in question recognizes a condominium's specific right to enact rules regulating access to its common areas so long as the rules are reasonable. Thus, Grandview has the authority to enact a rule reasonably restricting use of its auditorium. The rule specifically prohibiting religious services in its auditorium is reasonable in light of Grandview's concern that, based on the contentious condominium-wide meeting, serious conflict could arise between competing religious groups if services were not prohibited

O'Buck v. Cottonwood Village Condominium Assoc., Inc.

O'Buck v. Cottonwood Village Condominium Assoc., Inc. Rules in a declaration of condominium are valid if they are reasonable and do not violate public policy or the condo owners' constitutional rights. A condominium may adopt a rule in its declaration of condominium as long as it is reasonable in light of the rule's objective and the interest of the aggrieved party. Courts have held that due to the unique nature of condominium complexes, they are entitled to a greater degree of control over condominium owners' property uses. Cottonwood's declaration of condominium provides that it may adopt rules governing the use of common areas, including the roofs. Alternatively, the declaration of condominium also provides that Cottonwood may adopt rules to maintain a uniform external appearance of the units. Under either provision, Cottonwood's rule prohibiting the use of antennae is reasonable. The rule inhibits no significant interest of the O'Bucks; it merely forces them to pay $10 per month to hook up additional televisions. On the contrary, the rule helps Cottonwood maintain a functional, aesthetically pleasing complex for the benefit of all current and future residents. The rule prohibiting antennae on the Cottonwood roofs is reasonable and enforceable, and the superior court is affirmed.

Notice

Parties must be on notice of a covenant for it to be enforceable. There are three categories of notice: Actual Notice is satisfied by explicit knowledge being transferred verbally or in writing. Inquiry Notice exists when the conditions of the land would suggest to a reasonable owner that they should inquire about a covenant. · By defintion, a negative covenant creates difficulties with providing notice. Constructive Notice exists when the covenant is recorded in the deed and property registration system. · Owners must look to the chain of title of their land and the surrounding lands. · Problems arise when covenants exist in one deed, but not in the deed of the other party. · This leads to non-recorded parcel owners' unawareness of the covenant. · Most courts will find constructive notice satisfied in these cases because the owner has the burden of looking through the grantor's index to determine if common ownership ever existed. · Constructive Notice is required for injunctions and damages and can take the satisfy the privity requirement in some cases.

Planned Communities

Planned Communities require the creation of mutual promises between developers and all property buyers, making each lot both dominant and servient.

Privity

Privity of estate exists when two or more parties hold an interest in the same real property. Privity is required when seeking damages. Horizontal Privity exists between the original grantor and grantee. · The old English rule looks at simultaneous privity in which owners share interest at the same time (tenant & landlord). · Courts use the idea of instantaneous privity to say that there is privity at the time of sale, as the two parties share the property, even for a moment. · This can be manufactured through sales to third parties, known as "straw man" sales. · Horizontal privity can also be manufactured through easements. · If one owner already has an easement on the other's land, there is horizontal privity. Vertical Privity exists between the original parties and their subsequent owners. · The Strict Test for vertical privity requires that the original grantor transfer all interests to the successor (landlord/tenant relationship fails this test). · The Relaxed Test (used by the majority) does not require that all interests are transferred (landlord/tenant relationship satisfies this test).

Regulating HOA Covenants

Regulating HOA Covenants The Reasonable test is used by a majority of courts to limit HOAs and Condominium Boards' power to create covenants or new bylaws. In this context, the test considers: Intent of both parties Reasonableness in area, time, or duration Unreasonable nature of the restraint Impact on public interest Changed circumstances The Business Judgment Rule is used by a minority of courts to limit HOAs and Condominium Boards' power to create covenants or new bylaws. In this context, the Rule: Only considers whether the process by which the covenant or bylaw was created was reasonable, regardless of the substance of the covenant or bylaw. The rule takes into consideration the good faith of negotiations by accounting for notice, concerns, consideration given, research conducted, and the overall process by which the bylaw was created. The alteration or new rule is presumed to be reasonable if the process was rational and conducted in good faith.

Shelley v. Kraemer

Shelley v. Kraemer State court enforcement of a racially restrictive covenant constitutes state action that violates the Equal Protection Clause of the Fourteenth Amendment. State court enforcement of racially restrictive covenants constitutes state action, which violates the Equal Protection Clause of the Fourteenth Amendment. That Clause guarantees equal treatment of all people under the law, including in their exercise of various property rights. There is no question that restrictive covenants that discriminate solely on the basis of race would be invalid on equal protection grounds if created by a state or local law. The issue here is whether state court enforcement of racially restrictive covenants entered into by private actors constitutes state action. The Fourteenth Amendment does not apply to purely private discrimination Thus, people are free to enter into and voluntarily abide by racially restrictive covenants. Nevertheless, the Court has long held that the actions of state courts and judicial officers are state actions within the meaning of the Fourteenth Amendment. Improper state action does not only occur when a court practices unfair procedure. A court is also a state actor when it enforces a substantive rule that violates individual rights under the Fourteenth Amendment. In this case, state court enforcement of the restrictive covenants against the Shelleys would deny them equal protection in the exercise of their property rights. There was state action here, and judicial enforcement of the racially restrictive covenants violated the Equal Protection Clause. The rulings of the state courts are reversed.

The Changed Conditions Doctrine

The Changed Conditions Doctrine states that a covenant will not be enforced if: conditions have changed so drastically in the area covered by covenant (inside or outside of the restricted area) that enforcement results in The change must be so radical as to defeat the essential purpose of the covenant or render the covenant valueless to the parties. (Ex: no longer residential; now zoned for business; no longer a religious retreat). the covenant providing no benefit at all to the dominant estate (regardless of society's benefit) as it was originally intended. There must be no benefit at all to any person as a result of the changed condition, as opposed to a decreased benefit. No one who was supposed to derive a benefit from the covenant is benefitting from the covenant anymore (look at the original benefit).

The Covenants Enforceability Analysis Process

The Covenants Enforceability Analysis Process used to justify the violation of covenant is as follows: First, plaintiffs will argue that the covenant was never actually created properly based on: Statute of Frauds The Elements of Covenants If that fails, plaintiff will argue that the covenant does exist, but does not apply to them and is unenforceable. Typically, this will be a matter of interpretation (Ex: meeting to discuss religion, rather than holding a religious service). If that fails, plaintiffs will look to argue that the covenant is unenforceable based on: The Federal Constitution (requiring state action) Federal Statute State Statute (which may not require state action) State Constitution Common law: reasonableness/public policy/business judgment rule If that fails, plaintiffs will try to argue that the covenant has been terminated based on: Change of Conditions or Relative Hardship

The Elements of Covenants

The Elements of Covenants required are (1) In Writing (2) Intent to Run with the Land (3) Notice (4) Privity (5) Touch & Concern.

The Reasonableness Test

The Reasonableness Test balances the interests of the burdened land, the benefitted land, and public utility to decide whether the covenant is reasonable. Courts conduct a policy analysis, looking at proportionality, effects on other parties, interests of parties, interests of city/area; interests of public at large; intent of parties.

Relative Hardship Test

The Relative Hardship Test balances the hardship and benefit resulting from a covenant to determine if it should be terminated. This test focuses on the servient estate (burdened lot). If the hardship from enforcing a covenant is dramatically larger than the benefit from enforcing it, it will not be enforced. Covenant will be terminated if the burden is too substantial and not outweighed by the benefit to the dominant estate. Mere change in economic conditions rendering a property unprofitable is not alone sufficient to justify abrogating a restrictive covenant. Parties normally aren't compensated with damages, as the covenant is just terminated.

The Termination of Covenants

The Termination of Covenants can be achieved by showing that it is no longer enforceable. Parties who cannot prove that the covenant wasn't created or that it unenforceable will try to prove that it has been terminated. Generally, parties will try to have covenants terminated by arguing that: The covenant wasn't created properly (doesn't exist, SOF, etc.) The covenant doesn't apply to me (not appurtenant, etc.) The covenant can't be enforced (unconstitutional, violates statute, common law, reasonable, etc.) The covenant has terminated (changed conditions, equitable defenses, etc.)

Covenants

are promises made by a single party either to do or not do something relating to the use of her land. Covenants are also servitudes. Servitudes are about agreements between neighbors: the owner loses something to a neighbor, but it's based on agreement (implied or express) with that neighbor. The agreement creates a non-possessory interest that runs with the land.