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6 Cards in this Set

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How can real covenants and equitable servitudes be terminated?
Eminent Domain
Express Waiver or Release
Expiration of the covenant
Doctrines terminating equitable servitudes
1. Changed conditions within the affected area- a covenant will no longer be enforced in equity if conditions have so radically and thoroughly changed within the area affected by a covenant that the covenant can no longer achieve its purpose.
2. Changed conditions in the surrounding area- the nature an dthe character of the surrounding area has so changed that is would not be inequitable to enforce the servitude. It is necessary to establish that the extrinsic changes in the neighborhood have been so pervasive tha tall of the benefited lots have lost the benefit of the covenant at issue.

3. Abandonment
4. Equitable estopped
5. Laches
6. Unclean Hands
7. Balance of Hardships
Example of Doctrine terminating equitable servitudes: Resulting in a Non- termination

Western Land Co. v. Truskolaski
In 1941 Western Land subdivided 40 acres of rural land southwest of Reno, burdening all of the lots with restrictvive convenants limiting use to single family dwellings. By 1969 Reno had grown up around the subdivision, bracketing it with high traffic volume boulevards. Western proposed to use a 3.5 acre undeveloped site at one of those busy intersections for a shopping center, but the homeowners sought and obtained a trial court injunction preventing Western from violating the covenant

The court upheld the injuction, reasoning that because the covenant continued to be of “real and substantial value to the residents of a subdivision” the doctrine of changed conditions did not operate to terminate the covenant.
Doctrines terminating equitable servitudes:

Balance of hardships
Balance of hardships: Even when injunctive relief is otherwise appropriate, a court may deny an injunction if the injunction is high imposed by the injunction is very large in relation to the benefits produced, but this principle is rarely invoked by courts in servitudes cases, and may be more theoretical than actual.
Example of Balance of Hardships:

Rick V. West
Rick subdivided his 62 acres in 1946, restricting land use to single-family dwellings. West purchased a lot and built a house, but not many other followed suit. In 1959, Rick sought to sell 45 acres of the subdivision for industrial use but West refused to release the covenant. In 1961 Rick agreed to sell 15 acres for development of a much needed hospital.

Although the court agreed that this was a desirable location for a hospital, and the implicitly that the social loss resulting from issuing an injunction was greater than the benefits produced, the court enjoined the proposed use.
Affirmative covenants to pay money-- Perpetual Burden?
Affirmative covenants to pay money (usually dues to a homeowner’s association) may be enforced either by foreclosure of the equitable liens created by nonpayment or by suit to recover as money damages the unpaid dues. A later memedy is, of course, an action at law to enforce the covenant as a real covenant and equitable defenses will not usually apply. The burden of these covenenats is personal and may not be easily avoided.
Example Affirmative Covenants:

Pocono Springs Civic Association, Inc. v. Mackenzie
In 1969 MacKenzie purchased a lot in a residential development burdened by an affirmative covenant to pay homeowners due for various common purposes. In 1987 MacKenzie sought to sell the lot and learned that, because its soil would not percolate sufficiently to support a septic system, it was not lawful to build a residence on the lot. Believing the lot to be worthless. MacKen offered to give it to the homeowner’s association, which refused to accept the gift. MacKen then stopped paying taxes but nobody purchased it at a tax sale, and title remaind in Mac’s ame, although he notified everyone with any practical interest in the lot that he was abandoning ownership.

The Home Owners association sought and obtained a personal judgment against Mac for the unpaid dues. The court determined that it was not possible to abandon title to real property held in fee simple absolute and thus that Mac continued to be personally liable for the covenant to pay money.

o If you have clear title you can not abandon it unless you convey it.