In May of 1937, Gaskins acquired a property that had a lake to the west and Pamlico Sound on the east. In 1954 she conveyed part of her property to plaintiffs. In 1960 the plaintiffs conveyed back the land. Two days later, Gaskins conveyed the remaining unconveyed land to the Brughs and a small lake front property to plaintiffs. The final conveyance stated that the land shall not be used for business, manufacturing, commercial or apartment house purposes and that no more than two homes should exist on the conveyed land. Gaskins then erected her own home across the street from the conveyed property and lived there until she died. Gaskins’ property was then inherited by her daughter. Later the Brughs conveyed their property to the defendants, who then began to construct condominiums.
- (A) Whether Plaintiffs are entitled to restrictive covenants, where the original conveyor has since died and the suit is brought by her daughter.
- (B) Whether the owner of the smaller portion of the land (Runyon) may see for equitable servitude)
A restrictive covenant “… runs with the land of the dominant and servient estates only if (1) the subject of the covenant touches and concerns the land, (2) there is privity of estate between the party enforcing the covenant and the party against whom the covenant is being enforced, and (3) the original covenanting parties intended the benefits and the burdens of the covenant to run with the land.”
Equitable Servitude: “Even though a promise is unenforceable as a covenant at law because of failure to meet one of the requirements, the promise may be enforced as an equitable servitude against the promisor or a subsequent taker who acquired the land with notice ofh te restrictions on it… it must be shown (1) that the covenant touches and concerns the land and (2) that the original convenanting parties intended the covenant to bind the person against whom enforcement is sought and to benefit the person seeking to enforce the covenant.”
A. The court addressed each element in order:
(1). The covenant touches and concerns the land. It is sufficient touch the land if the covenant has an economic impact on the ownership rights of the parties. “It is essential, however, that the covenant in some way affect the legal rights of the convenanting parties as landowners.” The nature of the covenant implies that the subject of the covenant touches and concerns the land. The present covenant is a restriction of use of the land, which clearly affects the land’s economic value. The proximity between the plaintiff and defendant’s land and secluded nature of the land, the restriction against particular building activities constitutes sufficient touching.
(2) The party seeking to enforce the covenant must show “privity of estate with the party against whom he seeks to enforce the covenant.” There needs to be a sufficient relationship between the plaintiff and the party against whom enforcement is sought, in a manner very similar to contractual enforcement. The court believes there must be a showing of both horizontal (privity between original conventor and conventeee) and vertical privity (relationship between original conventor and successors in interest). Plaintiff Williams has vertical privity because she inherited her mother’s estate; but Plaintiffs Runyon are not in privity because they acquired the land prior to the covenant’s creation.
(3) There was intent to enforce the covenant in running. Defendants argue that the covenant doesn’t specifically say inherited estates will continue to enforce the covenants and therefore the covenant lacks intent. The court looked to the original contract’s construction, reviewing the “language of the instrument, the nature of the restriction, the situation of the parties, and the circumstances surrounding their transaction.” The deed made clear that enforcement would run with subsequent owners. The covenant’s restriction in totality makes it evident that she desired the more secluded area to be preserved as land, not just for her personal benefit.
(1) Convenant touching the land is already established in the prior analysis.
(2) The court found that the Runyons were not intended to have enforcement capabilities for establishing equitable relief either as owners of the adjacent land or in a personal capacity. The Runyons are not mentioned anywhere in the contract, nor had they purchased their property at any point after the time the convenants were written. In fact, they are not legally obligated to follow the covenants themselves.