Evans v. Pollack

Brief Fact Summary. A property owner subdivides his or her property into lots and sells those lots with restrictive covenants which will further the owner’s general development scheme.

Synopsis of Rule of Law. For the doctrine of implied reciprocal negative easements to apply, a development scheme may impose restrictions on only similarly situated lots.

Facts. A subdivision was platted around a lake. The plat divided the property into seven blocks, A through G. Blocks A, B, and G were further divided into 31 lots. F is located on a hill and surrounded by lakefront lots. The McCormicks had title to A, B, and C. The Hornsbys had title to D, E, F, and G. When the lots went up for sale, the deeds contained substantially the same restrictive covenants, including a voting rights covenant. All the lots conveyed up to this point were lakefront lots, and the voting rights under the restrictive covenants were limited to lots with lake frontage. When the Hornsbys passed away, their property that did not have restrictive covenants passed to their devisees, who contracted to sell a part of G to Thomas Pollack (Defendant) to build a marina, a private club, and a condominium development. Charles Evans’ (Plaintiff) deed contained restrictive covenants and he sued for equitable relief under the implied reciprocal negative easement doctrine.

Issue. In a common development scheme, do restrictions have to apply to the entire subdivision in order for the doctrine of implied reciprocal negative easement doctrine to apply?

Held. No. Judgment reversed.
Provisions in restrictive covenants that the restrictions may be waived or modified by the consent of three-fourths of the lot owners constitute strong evidence that there is a general development scheme furthered by the restrictive covenants.
The voting rights were attached only to lakefront lots, so it is reasonable to conclude that the restrictions only applied to those lots.
The restricted area does not need to be the whole subdivision or the whole retained tract. The general development scheme may be that the restrictions only apply to certain well-defined similarly situated lots.

Discussion. Implied reciprocal negative easements apply when an owner of property subdivides it into lots and sells those lots with restrictive covenants designed to further the owner’s general plan or scheme of development. The restrictions do not necessarily apply to all of the lots in a development.