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Private Land Use Arrangements: Easements, Real Covenants and Equitable Servitudes - Third Edition - Hardcover Edition
Private Land Use Arrangements: Easements, Real Covenants and Equitable Servitudes - Third Edition - PDF eBook
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§11.01 Duration
§11.02 Termination and Defenses
§11.03 Release or Agreement
§11.04 Merger
§11.05 Waiver, Abandonment, and Estoppel
§11.06 Laches and Unclean Hands
§11.07 Changed Conditions
§11.08 Relative Hardship
§11.09 Foreclosure
§11.10 Tax Deed
§11.11 Condemnation
§11.12 Marketable Title Acts
§11.13 Amendment and Modification
§11.01 Duration
(a) In General
The duration of a covenant is a function of the intention of the original
covenantor and original covenantee.1 Both of the covenanting parties must
contemplate the same limit on duration in order for it to be effective.2 In
some cases, the covenant expressly provides for a definite duration.3 Thus, a
specific number of years might be set out,4 or an obligation may be specified
to continue “permanently.”5 A termination procedure, based upon a vote of
lot owners in a subdivision, might be specified.6
In other situations, the covenant does not have a specific time limit.7 The
courts have somewhat divergent views on the effect of this, often reflecting
the conflict between the values of freedom of contract and the policy against
restrictions on land.8 Some courts, and the Third Restatement of Property,
expressly state that failure to limit the duration simply means that the
covenant is perpetual.9 (This position is inherent in the many decisions
which enforce old covenants without even considering the possibility that the
duration of the covenant might be limited.) The view that covenants without
a specified time limit are perpetual apparently recognizes the efficiency
benefits, freedom of choice, and moral obligation of covenants.10 Indeed,
some of these courts specifically note that covenants running with the land
are to be treated differently than ordinary agreements as far as duration.11
One court stated that it “was not prepared to hold that restrictions which limit
the use of property to residential purposes permanently or indefinitely are
void and unenforceable per se.”12
Other cases, however, do not conclude that the failure to set a specific
duration means that the covenant is perpetual. One group of courts,
apparently out of concern for unlimited restrictions on land, states that if a
covenant provides for an indefinite time period, a “reasonable” duration for
the covenant will be implied, based upon the circumstances.13 Taken
literally, these statements would seem to provide a broad reaching tool for
Gerald Korngold Gerald Korngold is Professor of Law at New York Law School in New York City and a Visiting Fellow at the Lincoln Institute of Land Policy in Cambridge, Massachusetts. He is the former Dean of Case Western Reserve University School of Law.
Professor Korngold is an elected member of the American Law Institute (ALI) and the American College of Real Estate Lawyers. He served as an Advisor to the ALI's Restatement of Property (Third) - Servitudes. Professor Korngold is also the author of Cases and Text on Property (with French, Vander Velde, Casner & Leach); Real Estate Transactions: Cases and Materials on Land Transfer, Development and Finance (with P. Goldstein) and Property Stories (co-edited with A. Morriss).