Login

Login

To access this feature, please Log In or Register for your Casebriefs Account.

Add to Library

Add

Search

Login
Register

LAND USE CONTROLS (PART 2): BY PRIVATE AGREEMENT

The homes of these neighbors are located on lots which have been separately deeded through a series of conveyances, originally severed and conveyed out by a common grantor, Lawrance.

Lawrance conveyed one parcel of his land in 1951 to Jones, Witter’s predecessor in title. [Note: if L conveys Blackacre to J via deed, that is sometimes called an “out conveyance” or a “deed out” from L, a/k/a, “the grantor” to J, a/k/a “the grantee”. If J then conveys Blackacre to W, both L and J qualify as W’s predecessors in title]. The deed to Jones contained the restrictive covenant providing that “no docks, buildings, or other structures [or trees or plants] shall be erected [or grown]” on the grantor’s (Lawrance’s) retained servient lands to the south “which shall obstruct or interfere with the outlook or view from the [dominant] premises” over the Winganhauppauge Creek. That deed provided that the covenant expressly ran with the dominant land. Witter purchased the dominant parcel from Jones in 1963 by deed granting them all the rights of their grantor, which included the restrictive covenant.

Meanwhile and after common grantor Lawrance died, his heirs in 1962 conveyed his retained, allegedly servient, land to Smith, one of the Taggarts’ predecessors in title [Note: “servient” means the land burdened by the restriction]. The heirs’ deed out to Smith made no reference to the restrictive covenant benefiting the Witter property. The restrictive covenant was also not included or referenced in any of the several subsequent conveyances of that allegedly servient parcel, or in the deed by which the Taggarts ultimately acquired the servient estate in 1984.

Restrictive covenants are also commonly categorized as negative easements. They restrain servient landowners from making otherwise lawful uses of their property. However, the law has long favored free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them. Courts will enforce restraints only where their existence has been established with clear and convincing proof by the dominant landowner.

Create New Group

Casebriefs is concerned with your security, please complete the following