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restrictive covenants
I have a situation and I am sure how to help my uncle. Arturo owned a seven acre tract, Skyacre, which was adjacent to a similarly sized meadow, Greenacre, owned by Benno.
In an effort to protect his view of Greenacre and sight line of the horizon, Arturo, without benefit of counsel, drafted the following document for Benno’s signature: I, Benno, owner of Greenacre, on behalf of myself, my heirs, and assigns, grant Arturo, owner of Skyacre, his heirs, and assigns, the right to a view over Greenacre unobstructed by any building. In consideration of the sum of twenty five thousand dollars ($25,000.00) I hereby promise on behalf of myself, my heirs, and assigns to refrain from constructing any building thereon so that Arturo, his heirs, and assigns can view the horizon over Greenacre. Arturo presented Benno with both the document and a check for $25,000 made payable to Benno. Benno signed the document under oath and took the check. Arturo promptly recorded the document. Although the document may appear to lack information, it was accepted for recordation, and, therefore, we must assume that it was valid. Years passed. Arturo enjoyed the view. Benno enjoyed the interest on his $25,000 investment. After a long and happy life, Benno died, leaving all of his estate, including Greenacre, to his daughter, Carmie. A year later Carmie built a home on the unimproved meadow of Greenacre. Later that same year, Arturo died, leaving all of his estate, including Skyacre to his son, Dante. Does Dante have any rights as against Carmie in the state of PA? |
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Ok, since you say it's not homework I'll give you the answer. Since there was adequate consideration and the document was duly recorded, the covenant runs with the land and is binding on all heirs, successors and assigns of Benno. So Dante has a claim against Carmie for either removal of the structure or the value of the loss of the view.
(But I still think this is a homework question.) |
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Can you really obligate someone who may not even be born yet to a contract? What if Carmie sold the land to someone... would they be obligated as well? If not, could they turn around and sell it back to Carmie, and thus free her of the obligation?
My thought is that under that contract, Carmie gives up something (the use and development of Greenacre), but does not get any benefit in return, since she does not necessarily get the 25K or the interest on it. So, there was no meeting of the minds between Carmie and Arturo, and thus she shouldn't be bound to the terms of the contract. |
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Sorry, Froggy, but restrictive covenants run with the land. The agreement was binding on all "heirs and assigns". When applied to heirs it is assumed that the heirs received the benefit of the money that was originally paid for the restriction. When applied to assigns, since it was a recorded document, anyone who bought the property would have notice of the restriction and if they still wanted the property they could offer less money for it because of the restriction.
Carmie didn't give up anything because she never had anything to give up. |
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 Originally Posted by LisaB4657
(Heh... this reminds me of a different thread I was in about frozen embryos and inheritances. The question there was what a child implanted posthumously would be able to inherit, and whether that would still apply even if the embryo was implanted a few generations later.) |
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The covenant runs until the owner of the property receiving the benefit (Dante and his heirs and assigns) signs and records a document releasing the restriction. Yes, it is still binding on Carmie's heirs, and the heirs of her heirs, etc. So technically it could last forever. :)
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Just an idle question (because I find learning things like this fascinating)... can Carmie plant a windbreak that blocks the view? I note that the covenant says "refrain from constructing any building thereon so that Arturo, his heirs, and assigns can view the horizon over Greenacre". Planting a line of evergreens is not constructing a building, but would definitely block the view. Legal?
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Carmie probably wouldn't get away with it. If Dante sued her a court would find that the intent of the original restriction wasn't to prevent construction per se, but to prevent installing anything that would block the view. Since the evergreens would block the view I think a judge would order them removed.
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Well since we're on the subject...
Does anyone know if a restrictive covenant like this runs for an infinite period? I'm looking at the Texas Property Code and I don't see that this is addressed so I assume that it runs with the property forever... or until a change is recorded. Nothing in the original filing states that there is a specific time. |
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