Spring Semester 2013
Class Discussion Questions — Pages 582-609
Introduction to Covenants Running with Land and "Privity of Estate"
The "Touch and Concern" Requirement
1. The Bremmeyer Excavating case is a straightforward example of the application of the privity of estate doctrine as articulated under the original Restatement of Property. How could Bremmeyer and Parks have entered into this covenant in a fashion that would have provided the necessary privity of estate?
2. Can you explain why the court doesn't let Bremmeyer enforce this covenant against McKenna and Pietromonaco? Should the court have let Bremmeyer enforce this covenant? Why or why not?
3. Consider the problems in note 3(a), 3(b), and 3(c) on page 589. Based upon the common law standard for enforcement of a covenant, how would you advise the respective clients in each problem?
4. In Neponsit, the total unpaid assessments were less than $100 and the covenant in question would have expired by its terms in 3 additional years. So why do you think the Bank litigated the case and appealed the adverse judgment at trial?
5. How would the following "negative" covenants be evaluated under the "touch and concern" standard? Under the Restatement?
6. How would the following "affirmative" covenants be evaluated under the "touch and concern" standard? Under the Restatement?
a. X and Y, neighbors, enter into a covenant that neither will use their land for commercial purposes.
b. X sells a portion of Blueacre to Y, subject to a covenant that Y will not operate a grocery store on that land (X is in the grocery business, but does not in fact have a store on Blueacre).
c. The development covenant in Garland v. Rosenshein (p. 598)?
a. X sells a portion of Blueacre to Y, subject to a covenant that Y and Y's heirs, successors and assigns must provide piano lessons to X.
b. The obligation to use Bremmeyer Excavating's excavation services in Bremmeyer Excavating v. McKenna.
c. The obligation to pay $100 per month in subdivision assessments (for the purpose of maintaining subdivision parks and streets). Are you persuaded by the court's reasoning in the Neponsit case?
d. The obligation to pay $250 per month in subdivision assessments for the purpose of maintaining and supporting a golf course that is also open to the general public.
e. Developer deeds land to Buyer. The deed to require the owner and the owner's heirs, successors, and assigns to pay a fee to the Developer, upon all resales of the land for a period of 99 years, equal to 1% of the purchase price." [This is the transfer fee covenant described in note 3, page 608.] Does it matter whether the fee was payable to the homeowners' association instead of being payable directly to the Developer?