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LAND USE CONTROLS (PART 2): BY PRIVATE AGREEMENT

To impute legal notice for failing to search each chain of title or “deed out” from a common grantor “would seem to negative the beneficent purposes of the recording acts” and would place too great a burden on prospective purchasers. Therefore, purchasers like the Taggarts should not be penalized for failing to search every chain of title branching out from a common grantor’s roots in order to unearth potential restrictive covenants. They are legally bound to search only within the chain of title to their own land and are bound by constructive or inquiry notice only of restrictions which appear in deeds or other instruments of conveyance in that primary chain. Property law principles and practice have long established that a deed conveyed by a common grantor to a dominant landowner does not form part of the chain of title to the servient land retained by the common grantor. Thus, a grantor may effectively extinguish or terminate a covenant when, as here, the grantor conveys retained servient land to a bona fide purchaser who takes title without actual or constructive notice of the covenant because the grantor and dominant owner failed to record the covenant in the servient land’s chain of title.

It goes almost without repeating that definiteness, certainty, alienability and unencumbered use of property are highly desirable objectives of property law. To restrict the Taggarts because of Lawrance’s failure to include the covenant in the deed to his retained servient land, or for the failure by Witter’s predecessors to insist that it be recorded so as to be enforceable against the burdened property, would seriously undermine these paramount values, as well as the recording acts.

[The court goes on to harmonize this result with its prior decision in Ammirati v. Wire Forms. That case involved a landlocked parcel of land (i.e., surrounded on all sides by the property of others, with no access unless some right of way is granted – the right of way being more specifically called “an affirmative easement by necessity”). Because of the landlocked circumstance, an affirmative easement by necessity existed, and the question in Ammirati was whether a subsequent purchaser of the servient estate was bound to honor the easement where no reference to it appeared in the chain of title. The court in Ammirati held that the servient land was burdened even though the easement was not included in its chain of title. The rationale was that the circumstances constituting a “necessity” ordinarily also constitute inquiry notice of the easement, which limits the common grantors’ ability to extinguish the easement by conveying the servient estate without referencing the easement in the deed out.] In this case, the Taggarts did not have inquiry notice of a covenant in the deed to Witter’s fully accessible parcel located across the canal.

We hold that, consistent with long-standing precedents and property principles, the Taggarts did not have actual or constructive notice of this restrictive covenant because it was never included in their deed or direct chain of title. There being no other imputable constructive or inquiry notice, they are not bound by that covenant.

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