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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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§10.01 Validity
§10.02 Covenants Violating Public Policy
$10.03 Interaction with Zoning
§10.04 Construction and Operation
§10.05 Building, Use, and Related Covenants
§10.06 Single Family Use; Group Homes; Age Restrictions
§10.07 Aesthetic and Architectural Controls
§10.08 Exercise of Power by Homeowners Governing Body
§10.09 Subdivision Assessments
§10.10 Restrictions on Competition
§10.11 Enforcement
§10.01 Validity
Covenants are generally considered valid and enforced by the courts. There
are certain exceptions, however. § 10.02 discusses covenants violating public
policy, and § 10.03 examines the interplay of public zoning and private
covenants.
§10.02 Covenants Violating Public Policy
Courts often declare that they will not enforce covenants which violate
public policy.1 This principle, however, is rarely developed in the cases, and
the courts have not used it as a broad tool to police ties on land.2 Thus, most
of the statements that covenants offending public policy are not enforceable
are dicta3 or flat conclusions that the covenant in question does not violate
public policy.4
Only a few courts engage in a detailed analysis of the policy issues. In one
case dealing with a covenant requiring homeowners to pay water and sewer
availability fees to the subdivider, the court made a lengthy examination of the
relevant policies.5 The court had to balance protection of consumers seeking a
fundamental good against the benefits of rewarding private entrepreneurial
efforts. Another case examined the policy ramifications in upholding a
covenant barring building on the property without the consent of the grantor.6
Even fewer decisions actually bar enforcement of a covenant on the theory
that public policy is offended. Those that do usually base their decision on a
conflict between the covenant and an express statutory provision or a
longstanding common law policy. Common law policies which are cited by
the courts to void a covenant are the policies against monopolies and restraints
on trade,7 restraints on alienation,8 and limits on access to the courts.9 In a
recent decision, for example, a court struck a covenant imposed by a town as
part of granting rezoning that required the developer/owner to sell the new
units in fee but allowed the end purchasers to lease out their units; while not
expressly using the term “restraint on alienation,” the court struck the covenant
as offensive to public policy because if there were any benefit from a rental
ban it would be lost when end users purchased.10
A statute may specifically set limits on the enforcement of a covenant,11 such
as those statutes which provide that a residential facility for the disabled shall be
considered a single family, residential use of the property in enforcement actions
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).