PROPERTY (Section 1)
Spring Semester 2013

Class Discussion Questions — Pages 613-620 and 645-665
Servitudes — Flexibility, Termination, and Modification of Servitude Regimes

1. Was the court correct in Fink v. Miller to conclude that the "wood-shingle roof" covenant had been terminated? Why or why not?

2. Suppose that in 1985, the neighborhood association involved in the Fink v. Miller case hired you immediately after the Community Development Committee realized its mistake. It tells you, "we want to strictly enforce the 'wood-shingle roof' covenant in the future." What steps would you have suggested for the neighborhood association to follow to maximize the chance of being able to enforce the covenant?

3. Suppose that by the time of the litigation in West Alameda, the City had re-zoned the affected land so that the applicable zoning ordinance would have permitted commercial uses like a shopping center. Should this justify a conclusion that the covenant had terminated due to changed circumstances? Why or why not?

4. Why not let the developer in West Alameda just build its shopping center and pay damages to all of the neighbors whose property value declines? In other words, why not protect the neighbors with a liability rule, rather than a property rule? Would liability rule protection be more sensible in this context than property rule protection? Why or why not?

5. What is the rationale for the court's ruling in Evergreen Highlands Ass'n v. West? Should a reasonable purchaser in West's position have appreciated, when he bought the land, the possibility of mandatory assessments in the future?

6. Pushaw owns a lot in Shady Acres subdivision, which is a covenant-restricted community governed by a homeowners association. General assessments fund the operation of the homeowners association as well as maintenance of the subdivision's infrastructure and common amenities. Pushaw is upset that the community association has not sufficiently maintained the subdivision's streets and signs, and has instead chosen to spend association funds on programs directed at neighborhood children. At a meeting of the Shady Acres HOA, 47 of 63 lot owners voted to have the HOA spend $100,000 to build a playground on part of the existing community greenspace, with state of the art playground and bathroom facilities, and to pay for these costs through increased assessments on all lot owners. Pushaw wants to know what recourse he has, if any, for refusing to pay the increased assessments or challenging their legality. What advice would you give him? What additional information would you like to know? Is this situation similar to (or different from) the situation in West?

7. What is the function of the 120-foot setback requirement that was approved by majority vote in the Boyles v. Hausmann case? What alternative explanation might exist for the imposition of the 120-foot setback requirement? Why did the court refuse to enforce the 120-foot setback requirement?

8. Suppose that the majority in Boyles had instead voted to:

(a) Abolish all of the existing covenants.
(b) Adopt a requirement that each lot owner had to leash their dogs and place their trash in dog-proof curbside containers (to cut down on trash problems caused by neighborhood dogs).

Do you think that the court in Boyles would have reacted the same way to these "changes"? Why or why not? Would it help or hurt the analysis of the problem in Boyles to analogize the community association to a local government?

9. The CC&Rs in West Alameda also had a "modification" provision allowing a majority vote to amend the existing covenants. Suppose that the association members in that case had voted, 84% to 16%, to release the covenants over Lots 13, 14, and 15, so that the Developer could build his shopping center. Would that amendment be valid?

10. Prof. Trachtenberg lives in the Grasslands neighborhood, which is subject to restrictive covenants that don't have a modification provision. Four years ago (before he bought his house), several residents in the neighborhood tried to get all of the neighbors to agree to add new covenants that would (a) prohibit owners from leasing their residences and (b) prohibit owners from allowing football game parking on their lots. Not everyone agreed, so the proponents went around and got signatures from 70% of the neighbors, in which the neighbors who signed agreed that they and their successors would be bound by the new restrictions even though they acknowledged that the new restrictions could not be enforced against the residents who didn't sign. The former owner of Prof. Trachtenberg's house, from whom Trachtenberg bought the house, was one of the residents who signed onto the new covenants. Are they enforceable against Trachtenberg? Why or why not?